http://www.floridasupremecourt.org/pub_info/summaries/briefs/09/09-839/Filed_05-21-2009_Stay_Order.pdf
Supreme Court of Florida
THURSDAY, MAY 21,2009
CASE NO.: SC09-839 Lower Tribunal No(s).: CR83-5401
DAVID EUGENE JOHNSTON vs. STATE OF FLORIDA
Appellant(s) Appellee(s)
The execution of David Eugene Johnston, scheduled for 6:00 p.m., Wednesday, May 27, 2009, is hereby stayed pending further order of this Court.
Johnston, a prisoner under a sentence of death and under the death warrant signed by Governor Charlie Crist on April 20, 2009, appeals inter alia the denial of his motion for DNA testing filed under Florida Rule of Criminal Procedure 3.853 seel(ing DNA testing on his tennis shoes, socks, and shorts, which are said to be in the custody of the Clerk of the Circuit Court or the Orlando Police Department, and on the fingernail clippings taken from the victim in this case, which are now said to be in the custody or control of the Orlando Police Department. Having reviewed the record itf this case, including all prior proceedings and the briefs of the parties, and having heard oral argument of counsel, we hereby relinquish jurisdiction for a period of ninety days for the purpose of conducting DNA tests on the abovereferenced items of evidence pursuant to the provisions of rule 3.853 and section 925.11, Florida Statutes (2008). Pursuant to the rule and statute, the results of the DNA testing shall be provided in writing to the trial court, counsel for Johnston, and the prosecuting attorney. The DNA testing and all proceedings in the trial court subsequent to the receipt of the DNA testing results shall be concluded and any order entered no later than ninety days from the date of this order. The trial court shall immediately provide a copy of any order entered subsequent to the DNA testing to the Clerk of this Court.
CASE NO. SC09-839 PAGE TWO
The court reporters shall have thirty days after completion of the above proceedings in which to file any transcripts with the trial court clerk and the trial court clerk shall have twenty days after receipt of the transcripts in which to file a record of the entire relinquishment proceeding with this Court. Per this Court's Administrative Order In Re: Mandatory Submission of Electronic Copies of Documents, AOSC04-84, dated September 13, 2004, the court reporters are directed to transmit a copy of any transcripts, in addition to paper copies, in an electronic format as required by the provisions of that order. The electronic version for this Court shall be submitted to the following e-mail address: efile@f1coutts.org. Counsel for the parties are hereby directed to file Status Reports with this Court every thirty days as to the progress of the relinquishment proceeding.
* THE COVERSHEET SHALL REFLECT "SUPPLEMENTAL RECORD
VOLUME 5, ETC." AND PAGE NUMBERING SHOULD START WITH PAGE 298 AND RUN CONSECUTIVELY.
QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.
A True Copy Test:
l0111as D~ H<111 C~lerl(, Slll)l~ellie C~Ollrt
th Served:
JEFFREY L. ASHTON HON. CHARLES J. CRIST, JR. ROBERT R. WHEELER OFFICIAL COURT REPORTERS D. TODD DOSS KENNETHS.NUNNELLEY HON. BOB WATTLES, JUDGE HON. LYDIA GARDNER, CLERK
Monday, May 25, 2009
Motion for clarification filed in David Johnston
http://www.floridasupremecourt.org/pub_info/summaries/briefs/09/09-839/Filed_05-22-2009_Motion_Clarification.pdf
IN THE SUPREME COURT OF FLORIDA
3G DAVID EUGENE JOHNSTON, CASE NO.: SC09-83~ Petitioner, L.T. CASE NO.: CR83-5401
v.
STATE OF FLORIDA, Respondent.
MOTION FOR CLARIFICATION OF ORDER RELINQUISHING JURISDICTION FOR DNA TESTING Comes now the Defendant, DAVID EUGENE JOHNSTON, by and through his undersigned counsel, and hereby moves this Court to clarify its order of May 21, 2009 relinquishing jurisdiction to the circuit court to permit DNA testing. In support of this motion, Mr. Johnston avers:
1. This Honorable Court entered its order dated May 21, 2009 staying Mr. Johnston's execution scheduled for May 27, 2009 and relinquishing jurisdiction to the circuit court for ninety days to complete DNA testing of Mr. Johnston's tennis shoes, socks, and shorts, as well as fingernail clippings of Mary Hammond. However, no mention is made of the hair and debris samples that Mr. Johnston had also requested to be tested. 2. During the case management hearing below, Mr. Johnston had orally amended his 3.853 motion to include hair and debris
-1
folds held by the Orlando Police Department. PCR. Vol II, 32. This amendment was accepted and acknowledged by the circuit court. Id. at 43. Additionally, Mr. Johnston included this amendment as part of his appeal of this cause and specifically referenced the oral amendment in his initial brief. IB at 7, fn.
4. The State of Florida did not object to the amendment, but instead opposed all DNA testing.
3. This Honorable Court made no reference to the hair and debris folds in the aforementioned order and Mr. Johnston seeks to clarify whether the hair and debris folds are to be included in the DNA testing. 1 The order was not clear as to whether the failure to mention the hair and debris was purposeful or inadvertent. 2
WHEREFORE, Mr. Johnston respectfully requests that this Court clarify its May 21, 2009 order in the above-styled cause as to whether the hair and debris folds are to be included in the ordered DNA testing.
IMr. Johnston will not attempt to provide any argument within this motion as to the merits of testing the hair and debris folds as the time for that has passed.
2 Judge Robert Wattles held a telephonic status conference on the afternoon of May 21, 2009 soon after the afternoon release of the aforementioned order. The State of Florida took the position that it would object to any attempt to include the hair and debris folds in DNA testing, despite the circuit court's willingness to include them for testing if the parties would stipulate to their inclusion.
-2
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing motion has been furnished by electronic transmission and u.s. Mail, postage prepaid, to Kenneth S. Nunnelley, Office of the Attorney
5th
General, 444 Seabreeze Blvd., Floor, Daytona Beach, FL 32118 on May 22, 2009.
D. TODD DOSS Florida Bar No. 0910384 725 Southeast Baya Drive Suite 102 Lake City, FL 32025-6092 Telephone (386) 755-9119 Facsimile (386) 755-3181
Counsel for Mr. Johnston
-3
IN THE SUPREME COURT OF FLORIDA
3G DAVID EUGENE JOHNSTON, CASE NO.: SC09-83~ Petitioner, L.T. CASE NO.: CR83-5401
v.
STATE OF FLORIDA, Respondent.
MOTION FOR CLARIFICATION OF ORDER RELINQUISHING JURISDICTION FOR DNA TESTING Comes now the Defendant, DAVID EUGENE JOHNSTON, by and through his undersigned counsel, and hereby moves this Court to clarify its order of May 21, 2009 relinquishing jurisdiction to the circuit court to permit DNA testing. In support of this motion, Mr. Johnston avers:
1. This Honorable Court entered its order dated May 21, 2009 staying Mr. Johnston's execution scheduled for May 27, 2009 and relinquishing jurisdiction to the circuit court for ninety days to complete DNA testing of Mr. Johnston's tennis shoes, socks, and shorts, as well as fingernail clippings of Mary Hammond. However, no mention is made of the hair and debris samples that Mr. Johnston had also requested to be tested. 2. During the case management hearing below, Mr. Johnston had orally amended his 3.853 motion to include hair and debris
-1
folds held by the Orlando Police Department. PCR. Vol II, 32. This amendment was accepted and acknowledged by the circuit court. Id. at 43. Additionally, Mr. Johnston included this amendment as part of his appeal of this cause and specifically referenced the oral amendment in his initial brief. IB at 7, fn.
4. The State of Florida did not object to the amendment, but instead opposed all DNA testing.
3. This Honorable Court made no reference to the hair and debris folds in the aforementioned order and Mr. Johnston seeks to clarify whether the hair and debris folds are to be included in the DNA testing. 1 The order was not clear as to whether the failure to mention the hair and debris was purposeful or inadvertent. 2
WHEREFORE, Mr. Johnston respectfully requests that this Court clarify its May 21, 2009 order in the above-styled cause as to whether the hair and debris folds are to be included in the ordered DNA testing.
IMr. Johnston will not attempt to provide any argument within this motion as to the merits of testing the hair and debris folds as the time for that has passed.
2 Judge Robert Wattles held a telephonic status conference on the afternoon of May 21, 2009 soon after the afternoon release of the aforementioned order. The State of Florida took the position that it would object to any attempt to include the hair and debris folds in DNA testing, despite the circuit court's willingness to include them for testing if the parties would stipulate to their inclusion.
-2
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing motion has been furnished by electronic transmission and u.s. Mail, postage prepaid, to Kenneth S. Nunnelley, Office of the Attorney
5th
General, 444 Seabreeze Blvd., Floor, Daytona Beach, FL 32118 on May 22, 2009.
D. TODD DOSS Florida Bar No. 0910384 725 Southeast Baya Drive Suite 102 Lake City, FL 32025-6092 Telephone (386) 755-9119 Facsimile (386) 755-3181
Counsel for Mr. Johnston
-3
Sunday, May 24, 2009
View lawyer Todd Doss in oral arguments in Florida Supreme Court in David Johnston
You can look at the oral arguments in the case of David Johnston in Florida Supreme Court here :
Lawyer Todd Doss.
The transcript of the oral arguments in David Johnston
http://www.wfsu.org/gavel2gavel/transcript/65525_09-839.html
The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.
David Eugene Johnston v. State of Florida
SC65525 SC09-839
>> THE NEXT CASE ON THIS COURT
DOCKET IS
JOHNSTON VERSUS STATE.
>> GOOD MORNING, MAY IT
PLEASE THE COURT AND
COUNSEL, TODD DALTON ON
BEHALF OF DAVID JOHNSTON, I
BEGIN MY ARGUMENT BY
FOCUSING ON THE DENIAL OF
DNA TESTING THAT WAS
SUBMITTED IN THE CIRCUIT
COURT
THE JUDGE WADDLES HAD
ORDERED AND FOUND THAT THE
EVIDENCE THAT WE HAD
REQUESTED TO BE TESTED WOULD
NOT RESULT IN AN EXONERATION
OF MR. JOHNSTON
>> WAS THERE EVER A
DETERMINATION SPECIFICALLY
AS TO THE FINGERNAIL
SCRAPINGS, WHETHER THERE WAS
-- WHETHER THE EVIDENCE
STILL EXISTED AND WHETHER
THERE WAS SUFFICIENT AMOUNT
TO ALLOW FOR DNA TESTING?
>> JUDGE WADDLES DID NOT --
WADDLES DID NOT MAKE THAT
SPECIFIC FINDING
I HAD COMMUNICATED TO JUDGE
WADDLES I HAD BEEN TO THE
ORLANDO POLICE DEPARTMENT AT
THE HEARING, AND THERE WERE
IN FACT FINGERNAIL CLIPPINGS
THERE
AND I HAVE WENT THROUGH THE
EVIDENCE WITH THE ORLANDO
POLICE DEPARTMENT
REPRESENTATIVES TO DETERMINE
WHETHER OR NOT THIS EVIDENCE
WAS IN FACT THERE
>> THAT EVIDENCE HAS NEVER
BEEN TESTED?
BY ANYBODY?
>> THERE'S NO INDICATION
WHATSOEVER THAT IT'S BEEN
TESTED
AND THE FORENSICS SEROLOGIST
TESTIFIED THAT THERE WAS
BLOOD ON THERE, NOT ENOUGH
FOR SEROLOGY TESTING, DNA,
THERE WASN'T ENOUGH FOR
TESTING, WE'RE TALKING ABOUT
1983, 1984 AND THE
INDICATIONS WAS THERE WAS
FLESH UNDERNEATH THOSE
FINGERNAILS
>> THIS CASE IS OVER 25
YEARS OLD, CORRECT?
>>
>> AND THIS EVIDENCE HAS
BEEN AROUND SINCE THAT TIME?
THAT'S WHAT IS TROUBLING TO
ME, IS WE'VE HAD MULTIPLE
CASES INVOLVING THIS
DEFENDANT, OF COURSE, WE'VE
HAD POST CONVICTION, WE'VE
HAD HABEAS, KEYS GONE TO
FEDERAL COURT, AND YET NO
ONE EVER ASKED TO HAVE
THIS EVIDENCE TESTED BEFORE
WE HEAR, YOU KNOW, 25 YEARS
LATER ON THE EVE OF
EXECUTION AND WE FINALLY GET
A MOTION TO TEST THIS
EVIDENCE, AND YOU KNOW, IT
SEEMS TO ME THAT AS SOON AS
ANY DEFENDANT HAS, IT CAN
WAIT UNTIL THE LAST MOMENT
BEFORE AN EXECUTION IS
SUPPOSED TO TAKE PLACE AND
ASK TO HAVE THIS KIND OF
EVIDENCE TESTED
>> I CAN'T SPEAK TO ANY OF
THE PRIOR COUNSEL
I WAS APPOINTED ON
APRIL 24TH, ONCE THE WARRANT
HAD BEEN SIGNED AND I FILED
IT 12 DAYS LATER AFTER
REVIEWING THE RECORD
>> BUT YOU UNDERSTAND -- WE
UNDERSTAND YOU'RE GOING TO
DO EVERYTHING YOU CAN TO
POSTPONE THE EXECUTION, BUT
GOING BACK, AND I UNDERSTAND
THAT THERE'S NOT A SPECIFIC
TIME BAR FOR THE DNA MOTION,
BUT IN THIS CASE, AND
LOOKING BACK ON ALL THE
PRIOR POST-CONVICTION
PROCEEDINGS, ACTUAL
INNOCENCE DOES NOT LOOK LIKE
THERE WAS EVER THE THRUST OF
THIS PARTICULAR CASE
AND I CAN CERTAINLY
UNDERSTAND WHY, BECAUSE HOW
DO YOU GET AROUND THE
FOOTPRINT OF THE KITCHEN
WINDOW, THE SCRATCH MARKS ON
HIS FACE, AS LATE AS 2:00
A.M., HE DIDN'T HAVE IT, THE
BLOOD-COVERED WATCH FOUND ON
THE BATHROOM COUNTERTOP, THE
BUTTERFLY PENDANT THAT WAS
THE DEFENDANT'S ENTANGLED IN
THE VICTIM'S HAIR, HIS
ADMITTED POSSESSION OF ITEMS
FROM HER HOME, SILVER AWARE,
CANDLE -- SILVERWARE,
CANDLESTICKS, TEA POUT AND
CREATING THESE BOGUS
CONFESSIONS FROM ANOTHER
PERSON THAT HE FABRICATED
I MEAN, THIS SEEMS TO BE A
CASE OF OVERWHELMING GUILT
NOW
I MEAN, WHETHER THIS IS A
MENTALLY ILL DEFENDANT THAT
SOME TIME BACK THAT SHOULD
HAVE BEEN DEVELOPED FURTHER,
AS FAR AS WHAT IS GOING
THROUGH HIS MIND AT THE TIME
OF THE CRIME, THAT'S ANOTHER
STORY
BUT IT DOESN'T SEEM TO ME,
IN TERMS OF THE ACTUAL
INNOCENCE, THAT THERE WAS
ANYTHING THAT THE DEFENSE
LAWYER THOUGHT HE OR SHE
SHOULD BE PURSUING GIVEN ALL
OF THIS OTHER OVERWHELMING
EVIDENCE
>> WELL, WE ARE TALKING
ABOUT A PROFOUNDLY MENTALLY
ILL INDIVIDUAL THAT'S BEEN
THE SUBJECT OF MANY
COMPETENCY HEARINGS WITH
VOLUMINOUS MEDICAL RECORDS
SHOWING HE HAD BEEN FOUND
INCOMPETENT IN KANSAS AND
HAD MANY PSYCHIATRIC
>> AND I'M PUTTING ASIDE
WHETHER THIS IS A MENTALLY
ILL DEFENDANT
I KNOW THAT'S NONE OF YOUR
POINT
BUT AS FAR AS THE ACTUAL
INNOCENCE OR THIS
PROBABILITY OF AN ACQUITTAL
OR THE THRESHOLD FOR THE
3.853, A REASONABLE
PROBABILITY OF AN ACQUITTAL,
NOTHING HAS EVER -- THERE'S
NOTHING THAT TAKES AWAY FROM
ALL OF THOSE ITEMS THAT I'VE
JUST MENTIONED THAT JUST
POINT TO THAT THIS DEFENDANT
KILLED THIS ELDERLY VICTIM
>> I THINK IT DOES, AND
WHERE I WAS GOING WITH THE
FACT OF BEING MENTALLY ILL,
I THINK WE CAN DISCOUNT MUCH
OF WHAT MR. JOHNSON HAS SAID
BECAUSE IT IS THE RAMBLING
OF A MENTALLY ILL MAN
WHEN YOU LOOK AT THE
PENDANT, THE TESTIMONY
REGARDING THE PENDANT, WE
HAD ACTUALLY CITED IN OUR
REPLY BRIEF AS TO THERE WAS
CONFLICTING TESTIMONY ON
THAT WHERE THE GIRLFRIEND
INITIALLY IDENTIFIES IT AS
THE BUTTERFLY PENDANT, BUT
LATER ON, SHE SAYS THAT NO,
HE HAD A HEART-SHAPED
PENDANT ON AND DARREN
MARTIN, THAT WAS THE ROOMMATE
OF MR. JOHNSON, ALSO
TESTIFIED HE HAD A
HEART-SHAPED PENDANT
SO I DON'T THINK THAT THAT'S
AS CONCLUSIVE AS WHAT THE
CIRCUIT COURT HAD MADE IT
OUT TO BE
WE'VE ALSO ASKED TO BE ABLE
TO TEST THE FOOTPRINT
EVIDENCE THAT'S OUT THERE
THAT HAS NEVER BEEN TESTED
THAT BASICALLY WAS JUST SAID
WELL IT APPEARS TO BE THE
TREADWARE WHICH TIES
IN WITH OUR FORENSIC TESTING
MOTION AND THE NATIONAL
ACADEMY OF SCIENCE REPORT
THAT HAS SAID WE NEED
STRICTER STANDARDS, WE NEED
TO HAVE MORE RELIABILITY IN
THIS TESTING
WHEN YOU LOOK AT THE
ARGUMENT I HAD CITED FROM
THE STATE, THEY'VE NEVER
INDICATED THAT THERE WAS
ANYONE ELSE THAT WAS
INVOLVED OTHER THAN
MR. JOHNSTON AND THAT HE WAS
THE ONLY ONE IN THAT HOUSE
MR. JOHNSTON, GRANTED,
THERE'S MUCH INCONSISTENCY
IN WHAT HE SAID, WE CAN
GLEAN THAT HIS STORY IS HE
COMES IN THE HOUSE, WHOEVER
THE ATTACKER AND KILLER WAS
HAD ALREADY PERPETRATED THE
CRIME AND LEFT, SO WE HAVE
--
>> LET ME ASK YOU THIS:
WHAT ABOUT THE BLOOD ON THE
DEFENDANT'S PERSON?
HE'S GOT A SUBSTANTIAL
AMOUNT OF BLOOD ON HIM,
RIGHT?
>> THAT IS CORRECT
>> NOW, IN ALL THESE
DIFFERENT STORIES, HE'S TOLD
-- THAT HE'S TOLD, DID HE
EVER GIVE ANY INDICATION
THAT HE HAD CONTACT WITH
THIS THIRD PARTY
PERPETRATOR?
>> NOT TO MY RECOLLECTION
>> WHAT HE SAID IS HE SAW
SOMEBODY
HE NEVER INDICATED THEY HAD
SOME KIND OF COLLISION THAT
WOULD HAVE RESULTED IN THE
TRANSFER OF BLOOD FROM THIS
THIRD PARTY TO HIM, AND SO
THE BLOOD, WE CAN GLEAN FROM
THAT, WOULD BE TOTALLY --
TOTALLY INCONSISTENT
IF YOU'RE LOOKING FOR SOME
EVIDENCE THERE, IT WAS -- IT
WOULD BE TOTALLY
INCONSISTENT WITH ANYTHING
THE DEFENDANT EVER SAID,
RIGHT?
>> I DON'T THINK SO
HE HAD TESTIFIED THAT HE
COMES IN AT ONE POINT -- OR
THAT HE MAKES A STATEMENT,
HE NEVER TESTIFIED, BUT HE
MAKES A STATEMENT THAT HE
COMES IN THE ROOM AND
APPROACHES TO WHERE THE
VICTIM IS AND LEANS DOWN AND
GRABS A HOLD OF HER ON THE
BED
WE DON'T KNOW IF THERE'S ANY
MIX OF THIS OTHER
PERPETRATOR WITH HIS BLOOD
OUT SOMEWHERE THERE BECAUSE
THE INDICATION FROM HER
FINGERNAILS IS SHE STRUGGLED
WITH WHOEVER THE ATTACKER
WAS, THUS THE BLOOD AND THE
FLESH ON THERE, AND I THINK
OUT OF ALL THE THINGS WE'VE
REQUESTED TESTING THAT
THAT'S THE MOST DEFINITIVE,
BECAUSE WHEN YOU LOOK AT THE
CLOSING ARGUMENT, THE
CLOSING ARGUMENT THAT THE
PROSECUTOR AT THE TIME MAKES
IS THIS VICTIM IS SCRATCHING
AND CLAWING FOR HER LIFE ON
HER BED AND THAT'S WHERE THE
SCRATCH ON MR. JOHNSTON'S
FACE HAD COME FROM, AS
OPPOSED TO HIS STORY THAT HE
HAD IN FACT PURCHASED A
PUPPY THAT DAY AND WHEN HE
WAS MAKING WITH THE PUPPY
THAT IT HAD SCRATCHED HIM
THERE IS EVIDENCE TO
CORROBORATE THE FACT THAT HE
DID BUY A PUPPY THAT DAY,
THERE IS OTHER TESTIMONY TO
SAY THAT WELL, I DIDN'T SEE
A SCRATCH ON HIM WHENEVER HE
LEFT AT 12:00 WITH THE TIME
AND DEATH BEING SOMEWHERE
BETWEEN 3:00 AND 4:00, BEST
WE CAN TELL
THE EVIDENCE OF THOSE
FINGERNAILS, THOUGH, I
THINK, IS CRITICAL HERE
IT WASN'T AVAILABLE BACK IN
1983-'84, WE HAD THE SIMPLE
SEROLOGY TESTING THAT WAS
NOT NEAR AS ACCURATE AS WE
HAVE NOW, PARTICULARLY THE
MITOCHONDRIAL TESTING OR THE
REPEAT TESTING WE CAN NOW DO
THE FURTHER CERTAIN AND I
CITE THUNDERSTORM IN MY
BRIEF IS THE CASE THAT'S
CURRENTLY PENDING BEFORE THE
U.S. SUPREME COURT,
OSBOURNE, WHERE IT DEALS
WITH ACCESS TO DNA EVIDENCE
AND WHETHER OR NOT DENYING
ACCESS TO THE DNA EVIDENCE
IS A DUE PROCESS VIOLATION
IN AND OF ITSELF, AND I
THINK THAT MR. JOHNSTON HAS
A RIGHT HERE AS TO ACCESSING
THIS EVIDENCE AND HAVING IT
TESTED, AND THAT WHEN WE
LOOK AT IT IN THE SCHEME OF
THINGS, THAT THE TESTING
WON'T TAKE THAT LONG
IT'S EITHER GOING TO BE
SHOWING THAT SOMEONE ELSE'S
DNA IS THERE OR IT'S GOING
TO BE SHOWING THAT HIS DNA
IS THERE, OR POSSIBLY
INCONCLUSIVE
AT THAT POINT, IT'S MUCH
MORE DEFINITIVE AS FAR AS
GOING FORWARD WITH THE
EXECUTION OF MR. JOHNSTON
HE'S COMPLIED WITH EVERY
ASPECT OF 3.853, WITH NO
TIME LIMITATION BEING THERE
I UNDERSTAND THIS COURT'S
CONCERN, BUT THERE'S NO TIME
LIMITATION THERE, AND
MR. JOHNSTON HAS LAID OUT
EACH AND EVERY ASPECT OF
3.853, THE ONLY THING THAT
JUDGE WADDLES
IS HUNG ON IS THIS
EVIDENCE THAT WOULD
EXONERATE HIM OR NOT
NOW, WHEN I DISCUSSED THE
FIRST BORN CASE, I USE THAT AS
A PREDICATE TO ESTABLISH
THAT WE'RE ALSO ENTITLED TO
THIS FORENSIC EVIDENCE
THAT'S THERE, SUCH AS THE
FOOTPRINT
I HAVE REPRESENTED TO JUDGE
WADDLES THERE IN THE TRIAL
COURT THAT I'VE PERSONALLY
SEEN THE CASTS, THE CASTS
ARE STILL THERE, THE
FOOTPRINT EVIDENCE IS STILL
THERE SO THAT WE CAN HAVE
SOMEONE DO A MORE RIGOROUS
EXAMINATION THAN WHAT WAS
REVEALED IN THE TRIAL
TRANSCRIPT, WHICH BASICALLY
THEY JUST SAID IT APPEARED
TO BE SO
THEY DIDN'T REALLY GO
THROUGH A WHOLE LIST OF
QUALIFICATIONS
>> NOW, ON SOMETHING THAT'S
NOT BEING DNA TESTED, AND
YOU'VE SAID THE FOOTPRINT
HAS -- THE CAST HAS BEEN
THERE, YOU DON'T HAVE A
FREESTANDING RIGHT JUST TO
HAVE ANYTHING TESTED
I MEAN, THE GOVERNOR CAN SAY
YES, I CAN GET IT TESTED BUT
IT CAN'T -- IF IT CAN'T BE
DNA TESTS, WHERE IS THE
AUTHORITY THIS COURT HAS IN
-- LET'S SAY LET'S ORDER
TESTING OF ALL OTHER ITEMS?
>> I HAD CITED TO THE
OSBOURNE CASE WHERE THE
ARGUMENT WAS MADE --
>> THE U.S. SUPREME COURT
>> IT'S BEFORE THE U.S.
SUPREME COURT, HOWEVER, THE
UNITED STATES NINTH CIRCUIT
OF APPEALS HAD INDICATED IT
DIDN'T LIMIT THEIR RULING TO
DNA EVIDENCE
IT SAID BIOLOGICAL EVIDENCE
I THINK THAT THAT'S MORE --
>> BUT YOU WOULD AGREE THE
STATUTE WHICH DOESN'T HAVE A
TIME LIMIT IS LIMITED TO DNA
EVIDENCE?
>> ABSOLUTELY 3.853 IS
LIMITED TO DNA EVIDENCE, AND
THAT'S WHY JUDGE PARIENTE,
BROUGHT IT IN TWO MOTIONS,
BECAUSE I UNDERSTAND WE'RE
TALKING ABOUT TWO SEPARATE
MECHANISMS, TWO SEPARATE --
>> WAS THE FOOTPRINT EVER
CHALLENGED?
I KNOW THAT THERE HAVE BEEN
CASE THAT IS TALK ABOUT A
LOT OF THE SCIENCE THAT IS
USED
THE FOOTPRINT ANALYSIS HAS
COME UNDER FIRE AS ONE OF
THE AREAS THAT REALLY ISN'T
AS ACCURATE AS WE MIGHT HAVE
FIRST THOUGHT, BECAUSE AS
JUDGE QUINCE SAID, THERE
HAVE BEEN CONVICTION PHASE A
COUPLE OF DECADES AND I
DON'T RECALL THERE BEING A
CHALLENGE, REFRESH MY
RECOLLECTION, TO THE
FOOTPRINT EVIDENCE
>> I DON'T RECALL THAT THAT
HAD EVER BEEN CHALLENGED
HAD IT BEEN CHALLENGED, I
WOULD HAVE PRESENTED IT TO
THE COURT WHATEVER THE
RESULTS WITH WERE AND I
CAN'T ANSWER THE QUESTION AS
TO WHY IT HASN'T BEEN
>> I THINK POST-CONVICTION,
IT WASN'T ARGUED THAT NOW WE
HAVE A FOOTPRINT EXPERT THAT
CAN SHOW THIS MIGHT NOT BE
OR WASN'T MR. JOHNSTON'S
FOOTPRINT
>> I HAVE NO INDICATION --
>> I MEAN, I UNDERSTAND, YOU
CAME IN APRIL, AND YOU ARE
CERTAINLY, HAVE DONE A YEOMAN'S
JOB ON MR. JOHNSON'S HALF BUT
THROWING ALL OF THIS OUT AFTER
25 YEARS, IS -- YOU KNOW, IS
JUST -- TURNS THE PROCESS ON ITS
HEAD.
AND THE TIME LIMITS THAT ARE
IMPORTANT FOR, YOU KNOW, IN THE
SCHEME OF THE WAY DEATH CASES GO
AND I THINK -- I DON'T THINK ANY
AUTHORITY, FOR TO YOU ORDER
ANYTHING OTHER THAN THAT -- THE
DNA TESTING ASSUMING, THERE IS A
THRESHOLD ON THAT.
>> I THINK THERE IS A DUE
PROCESS RIGHT AND THAT IS WHY I
SPECIFICALLY LINKED IT TO
OSBORNE AND ALSO, IT DOVETAILS
INTO THE NEWLY DISCOVER CLAIM
REGARDING THE NATIONAL ACADEMY
OF SCIENCES REPORT THAT CAME OUT
AND CALLS INTO QUESTION, MUCH OF
WHAT HAS BEEN DONE, IN THESE
OTHER FORENSIC SCIENCE AREAS, AS
ILLUMINATED BY DNA TESTING --
>> HAVEN'T WE REALLY CROSSED THE
BRIDGE WITH REGARD TO STUDIES
AND THOSE KINDS OF THINGS WITH
REGARD TO WHETHER THESE THINGS
ARE REALLY NEWLY DISCOVERED
EVIDENCE.
AS OPPOSED TO FACTUAL MATTERS
DEALING WITH THE CASE, HAVEN'T
WE ALREADY CROSSED THAT...
>> MY UNDERSTANDING OF THE
COURT'S CASE LAW REGARDING THAT
IS THAT IT NEEDS TO BE TIED
SPECIFICALLY TO A PARTICULAR
CASE, AND I AM AWARE OF RUTH
FORD AND THAT -- THE WHOLE LINE
OF CASE THAT'S DEALT WITH THE
ABC REPORT WHICH I SUBMITTED A
MUCH MORE GENERAL REPORT THAN
WHAT WE HAD WITH THE NATIONAL
ACADEMY OF SCIENCES AND IS MORE
IN LINE WITH WHAT I CITED, WHERE
THE COURT RELINQUISHED
JURISDICTION SO TREPAL COULD
HAVE AN EVIDENTIARY HEARING AND
THE ABILITY TO LINK THE FBI
REPORT REGARDING FRAUD IN THAT
LAB TO HIS CASE, THE COURT NEVER
INDICATED THIS WASN'T
NECESSARILY NEWLY DISCOVERED
EVIDENCE, IN AT THE TREPAL CASE
AND IT SAID IT WASN'T
ESTABLISHED THAT IT ROSE TO THE
LEVEL OF WARNING RELIEF FOR
TREPAL I DIDN'T TAKE THAT AS A
CATEGORICAL EXEMPTION AND I
SPECIFICALLY -- DIDN'T LINK IT
SPECIFICALLY TO THE CASE AND THE
SPECIFIC PIECES OF EVIDENCE THAT
WERE ADMITTED INTO
MR. JOHNSTON'S CASE SO THAT THIS
COURT COULD SEE, THE VALUE OF
THAT.
AND I THINK, TOO, WHEN WE ARE
TALKING ABOUT THAT KIND OF
EVIDENCE AND TALKING ABOUT
EXONERATION THERE WERE 14 PRINTS
THAT WERE LIFTED WITHIN THE
VICTIM'S HOME.
FOR YOU WERE USABLE.
AND WERE ACTUALLY COMPARED TO
MR. JOHNSTON TO THE VICTIM AND
TO KEVIN WILLIAMS, THE SUBJECT
OF ALERT SUPPOSEDLY WRITTEN BY
HIM AND LATER DEBUNKED AND IT
DIDN'T MATCH THAT AND WHEN WE
COME AND ASK ABOUT EXONERATION
AND THE POSSIBILITY THAT THERE
IS SOMEONE ELSE'S FLESH AND
SOMEONE ELSE'S BLOOD UNDER
THERE, AT A REASONABLE
PROBABILITY THERE IS SOMETHING
ELSE THERE AND IT IS HEIGHTENED
BY MR. JOHNSTON'S MENTAL ILLNESS
THAT HE IS -- RAMBLING OF A
PROFOUNDLY MENTALLY ILL MAN AND
I THINK IT IS BEYOND DISPUTE
HE'S MENTALLY ILL AND HEIGHTNESS
THE NEED TO CORROBORATE WHAT
HE'S SAYING AND SIT IN CONTRAST
TO WHAT THE PROSECUTOR ARGUED IN
CLOSING ARGUMENT I CITED IN MY
BRIEF.
>> YOU ARE WELL INTO YOUR
REBUTTAL IF YOU WANT TO SAVE
SOME TIME.
>> THANK YOU VERY MUCH.
>> MR. NUNNELLEY.
>> I REPRESENT THE STATE OF
FLORIDA.
LET ME START --
>> COULD YOU START IN THE PART?
HOW LONG DID MR. JOHNSTON
EFFECTIVELY NOT HAVE A LAWYER
BECAUSE THE PRIOR LAWYER OR THE
CTCC HAD MOVED FOR WITHDRAWAL,
WHAT IS THE TIMEFRAME?
>> IF I... I'M MATH CHALLENGED
THIS MORNING, JUSTICE PARIENTE.
MAYBE A YEAR.
I THINK --
NO, NO, I'M SORRY, NOVEMBER OF
LAST YEAR, I BELIEVE, IS WHEN
THE MOTION TO WITHDRAW WAS
FILED.
>> AND THEY -- WHAT WAS THE
BASIS FOR THEIR MOVING FOR
WITHDRAWAL.
>> THEY WERE TOO BUSY.
>> THIS IS THE CTRC MENTAL.
>> YES MA'AM THE BASIS OF THEIR
MOTION TO WITHDRAW WAS THEY WERE
TOO BUSY TO DO THE CASE.
>> AND WHEN IT WAS SIGNED, THE
JUDGE HEARD IT AND DECIDED THEY
WEREN'T TOO BUSY AND APPOINTED
MR. DODD AS COUNSEL.
>> WELL, JUDGE WALLACE NEVER --
HE LET CCRC OUT ON THE POINT OF
MR. DOS AND DIDN'T MAKE FINDINGS
ON WHETHER THEY WERE TOO BUSY,
THEY WERE THERE AND SAID WE
CAN'T DO IT WEEKS HAVE THE FILES
BOX U. DOWNSTAIRS AND THE JUDGE
SAID, MR. DOSS YOU WOULDN'T TAKE
THE -- WANT TO TAKE THE CASE AND
TO HIS CREDIT, HE SAID, YES,
SIR, I AM.
>> BUT AT THE POINT THEY SAID
THEY WERE TOO BUSY WAS THERE
ANYTHING GOING ON IN MORE
JOHNSTON'S CASE?
>> NO.
>> HAVE THEY JUST...
>> [INAUDIBLE].
>> YOU GOT THE FREE BE I GUESS.
>> THAT'S OKAY.
>> I'M I MEAN, I'M CONCERNED
BECAUSE WARRANTS ARE GETTING
SIGNED AND THIS ENDED UP
HAPPENING, THIS IS -- IT IS
DETRIMENTAL TO THE
ADMINISTRATION OF JUSTICE IF YOU
HAVE A NEW LAWYER JUMPING IN
LESS THAN 30 DAYS BEFORE AN
EXECUTION AND NOW HAVING TO LOOK
AT THE WHO'LL THING AND NOW,
MAYBE CCR MENTAL SHOULD HAVE
BEEN LOOKING AT THE ISSUE, IT
SEEMS LIKE THE FINGER IS NOW...
[INAUDIBLE] CAN YOU HELP ME
ANYBODY MORE ON WHETHER THINGS
STARTED TO HAPPEN, IN
MR. JOHNSTON'S CASE AND CCRC
MENTAL SAYS WE ARE TOO BUSY OR
JUST FILED IT IN MR. JOHNSTON'S
CASE AND NO OTHER CASE?
WE CAN'T REPRESENT THE DEFENDANT
BECAUSE WE ARE TOO BUSY.
>> LET ME ANSWER THAT IN THE
WAY:
OKAY.
THE LAST PROCEEDING -- LAST RUN
THROUGH THIS COURT WAS THE
MENTAL RETARDATION PROCEEDING IN
2006.
WHEN MR. JOHNSTON WAS
REPRESENTED BY ED MILLS.
MR. MILLS HANDLED THAT --
>> AND WHO WAS HE.
>> HE WAS REGISTRY COUNSEL
APPOINTED BY JUDGE WALLACE WHO
REPRESENTS MR. JOHNSTON AS I
RECALL AND THIS IS A LOT OF
DUSTY FILES, JUSTICE PARIENTE
BUT BOTTOM LINE, MR. MILLS WAS
APPOINTED, TRIED THE MENTAL
RETARDATION HEARING, AND STAYED
IN THE CASE, FOR A PERIOD OF
TIME, AFTER THAT, I DON'T
HONESTLY REMEMBER IF HE SOUGHT
CERTIFICATE REVIEW OR NOT, I
DON'T KNOW, DOESN'T MATTER,
ULTIMATELY, MR. MILLS SAID --
APPARENTLY REACHED THE
CONCLUSION THERE IS NOTHING MORE
I CAN DO AND FILED THE MOTION TO
WITHDRAW WHICH WAS GRANTED.
>> BUT UNDER THE SYSTEM HE'S
SUPPOSED TO STAY IN UNTIL THE
EXECUTION.
ISN'T THAT -- I MEAN, WE NEED --
THESE THINGS, BECAUSE WE NEED TO
KNOW THERE HAS BEEN -- I THINK
THE ATTORNEY GENERAL'S OFFICE
NEEDS TO MAKE SURE THE
GOVERNOR'S OFFICE NEEDS TO KNOW
THE SYSTEM MAY START TO BE
BREAKING DOWN, BECAUSE EITHER
THERE ARE NOT EFFICIENT REGISTRY
COUNSEL FOR CCRC MENTAL OR STAFF
ARE TOO BUSY, WE CAN'T THEN --
IT PUTS THIS COURT IN A POSITION
OF INSTEAD OF MR. JOHNSTON
HAVING ONE PERSON REPRESENTING
HIM OVER THE LASTING, YOU KNOW,
DECADE, HE'S NOW HAVING SOMEBODY
COMING IN FOR THIS AND SOMEONE
COMING IN FOR THAT, AND MAYBE
THAT IS THE REASON WHY NOBODY
LOOKED AT THE WHOLE CASE TO SAY,
THERE IS AN ISSUE THAT NEEDS TO
BE EXPLORED.
>> AFTER MR. MILLS WAS ALLOWED
OUT, ANOTHER REGISTRY ATTORNEYS
WAS PROMPTLY APPOINTED, A
MR. SOLIS I BELIEVE IT IS.
SOLIS, I THINK.
AND HE APPOINTED TO THE CASE, BY
JUDGE WADDLES, AND SOME SEVERAL
MONTHS, 6, 8, 10 MONTHS, LATER,
HE FILES A MOTION TO WITHDRAW.
STATING THAT I HAVE REVIEWED THE
FILES AND RECORDS AND I SEE
NOTHING THAT I CAN RAISE.
>> MR. NUNNELLEY, HEARS MY
CONCERN, YOU HAVE A CASE, THE
DEFENDANT IS IN NO HURRY FOR...
[INAUDIBLE] THEY FILE A MOTION
TO WITHDRAW.
DISMISSED.
NO ONE IS SCHEDULED FOR THE
HEARING.
[INAUDIBLE] INTO THIS WOULD BE
THE CCR MOTION.
>> RIGHT.
MOTION TO WITHDRAW AND UNTIL
THAT IS RESOLVED, I THINK YOU
KNOW, YOUR OFFICE KNOWS, THE
CASE IS NOT GOING ANYWHERE.
WHY IS IT THAT YOUR OFFICE
[INAUDIBLE] WHY DID YOU NOT
SCHEDULE IT FOR A HEARING.
>> THERE WAS NO ACTION GOING ON
IN THE CASE.
CCRC HAD MOVED TO WITH DRAW, IT
WAS THEIR MOTION AND WOULD HAVE
BEEN THEIR BURDEN TO SEEK A
RULING ON THAT MOTION, AND UNTIL
THAT MOTION IS RULED ON THEY
REPRESENT THE MAN, THEY ARE
STATUTORILY CHARGED TO REPRESENT
HIM.
>> THEY FILED A MOTION, DIDN'T
SCHEDULE IT FOR A HEARING.
IT SITS THERE FOR A YEAR.
WHY DOESN'T YOUR OFFICE SCHEDULE
FOR A HEARING, AD AND LET'S
BRING IT TO A HEAD AND GET GOING
ON THIS.
OTHERWISE, IT HAPPENS WHEN THE
GOVERNOR SIGNS THE EXECUTION
WARRANT.
>> I CANNOT GIVE YOU AN ANSWER
FOR THAT.
PERHAPS WE SHOULD HAVE.
BUT, ON THE OTHER HAND, CCR AS
THE MOVING PARTY, IS THE ONE
THAT HAS THE BURDEN TO GET THE
CASE IN FRONT OF THE COURT.
IF THEY WERE -- IF THEY WANT TO
-- A RULING ON THEIR MOTION THEY
NEED TO ASK FOR IT.
>> YOU ARE SAYING, THERE WAS A
SECOND REGISTRY COUNSEL WHO THEN
MOVED TO WITHDRAW AND IS THAT
WHEN --
>> CCRC WAS APPOINTED AND IT WAS
SOMETIME AFTER THAT, NOT
IMMEDIATELY, SOMETIME LATER,
THAT THEY CAME IN, SAYING, WE
ARE TOO BUSY TO HANDLE THIS
CASE.
>> THE IMPLICATION THERE IS,
THERE ARE OTHER THINGS THAT ARE
AVAILABLE TO DO, WE ARE JUST TOO
BUSY TO DO IT, BECAUSE,
CERTAINLY, CAN'T BE TOO BUSY TO
DO NOTHING.
WHICH IS WHAT YOU ARE SAYING THE
OTHER REGISTRY COUNSEL --
>> THEY DID NOT SAY THAT THEY
WERE TOO BUSY TO DO NOTHING.
THEY SAID, WE CAN NOT -- CANNOT
TAKE THIS CASE INTO OUR OFFICE.
>> LET ME ASK YOU, AND MAYBE
THIS IS WHERE YOU ARE GOING.
I'M CONCERNED, I DON'T KNOW HOW
CONCERNED I AM, BUT I AM
CONCERNED THAT DNA TESTING WAS
NEVER DONE ON THESE FINGER NAIL
SCRAPINGS, WHICH COULD EITHER
CONCLUSIVELY SHOW MR. JOHNSTON
IS THE PERPETRATOR, OR, RAISE
GENUINE CONCERNS IF IT IS
POINTED TO ANOTHER PERSON, I
MEAN, DNA, WHY DIDN'T THE STATE
JUST SAY, YOU KNOW, OKAY.
WE'LL HAVE THIS -- THESE
FINGERNAIL DESCRIPTIONS, DNA
TESTED AND HOW COME THAT WAS
NEVER DONE?
I DON'T UNDERSTAND IT.
>> I'LL GIVE YOU TWO ANSWERS AND
I DON'T MEAN TO BE INTEMPERATE
WITH THE FIRST ONE --
INTEMPERATE WITH THE FIRST ONE,
JUSTICE, I REALLY DON'T BUT IT'S
NOT THE STATE'S BUSINESS TO
RETRY FINAL CASES AND THIS
SECOND REASON WHICH IS REALLY
THE FIRST REASON I SUPPOSE, IS
THIS IS NOT AND NEVER HAS BEEN A
LABORATORY EVIDENCE CASE.
THIS IS A CASE THAT IS BASED
UPON THE EVIDENCE THAT YOU
DISCUSSED WITH MR. DOSS THE
BUTTERFLY PENDANT FOUND IN THE
VICTIM'S HAIR AND THE BLOOD ON
THE DEFENDANT'S CLOTHING, THAT
HAS NEVER, EVER, EVER BEEN
DISPUTED AS TO WHOSE IT WAS,
UNTIL MAY OF THIS YEAR.
THE FOOTPRINT FOUND OUTSIDE THAT
HAS NEVER, EVER, EVER BEEN
DISPUTED IN 25 YEARS, UNTIL NOW
--
>> DID MR. JOHNSTON SAY AT SOME
POINT THAT HE PICKED THE VICTIM
UP.
>> YES, MA'AM --
>> FOUND HER AND SO, I MEAN,
THEORETICALLY THAT IS HOW SOME
BLOOD COULD HAVE GOTTEN ON HIS
PERSON.
>> THIS IS --
>> WAIT A MINUTE.
OKAY.
>> I'M SORRY.
>> THERE ARE OTHER EXPLANATIONS
FOR SOME OF THE EVIDENCE THAT --
EXPLANATIONS FOR SOME OF THE
EVIDENCE WE DO HAVE AGAINST HIM
AND THAT IS WHY IT IS OF CONCERN
THAT THESE OTHER PIECES OF
EVIDENCE WERE NEVER TESTED.
I AM TRULY CONCERNED THAT WE
DON'T HAVE A RULE THAN REQUIRES
YOU, IF THERE IS SOMETHING YOU
WANT TO HAVE TESTED, THAT YOU
ASK FOR THE IT BEFORE YOU KNOW,
THE GOVERNOR SIGNS A DEATH
WARRANT, BUT, BE THAT AS IT MAY
IT SEEMS TO ME THAT SOME OF THE
OTHER EVIDENCE AGAINST
MR. JOHNSTON, THERE ARE OTHER
EXPLANATIONS FOR.
THIS SEEMS TO BE REALLY
SOMETHING THAT COULD, YOU KNOW,
PUT THE NAIL ON IT, AS IT WERE,
BECAUSE IT'S EITHER HIS DNA
UNDER THE LADY'S FINGER NAILS OR
IT ISN'T.
>> LET ME ANSWER THAT BEST I
CAN, YOU MAY HAVE TO HELP ME OUT
WITH SOME OF THIS HERE, JUSTICE
QUINCE, I'M NOT SURE I WILL BE
ABLE TO REMEMBER ALL OF IT.
THE BOTTOM LINE IS THAT
MR. JOHNSTON HAS HAD THE
AVAILABILITY OF DNA TESTING WHEN
HE WAS REPRESENTED BY OLD CCR.
CCR-NORTH, BEFORE THEY WERE
DISSOLVED.
HE COULD HAVE SOUGHT DNA TESTING
THEN.
ANDREWS HAD JUST COME OUT.
EVERYBODY KNEW ABOUT DNA.
HE DIDN'T DO IT.
YOU HAVE IN THE CASE, WHILE
MR. JOHNSTON, THROUGH HIS
STATEMENTS, HAS TRIED TO EXPLAIN
-- AND I BELIEVE THERE ARE
EITHER FIVE OR SIX OF THEM, HE
TRIED TO EXPLAIN AWAY EVERYTHING
KIND OF PIECE BY PIECE, WHEN HE
FOUND OUT, FOR EXAMPLE, THAT LAW
ENFORCEMENT KNEW THAT HE HAD
THAT HE HAD SCRATCHES ON HIS
FACE AND NEXT, HE SAID I BOUGHT
A PUPPY AND THE PUPPY SCRATCHED
ME.
WHEN HE FINDS OUT THE BUTTERFLY
PENDANT IS TANGLED UP IN THE
VICTIM'S HAIR, HE SAYS, OH, I
HAVE KNOWN HER TWO OR THREE
YEARS AND I GAVE IT TO HER AS A
GIFT.
NEVER MIND THE FACT THAT HIS
FORMER FIANCEE TESTIFIED THAT
SHE -- AND SHE WORKED IN A
CONVENIENCE STORE, NOT TERRIBLY
FAR FROM THE CRIME SCENE,
TESTIFIED THAT SHE GAVE THAT
NECKLACE TO HIM AND THAT HE WAS
WEARING IT WHEN SHE SAW HIM,
SHORTLY BEFORE THE MURDER TOOK
PLACE.
NOW, THERE WAS TESTIMONY --
>> CAN YOU ADDRESS THE COMMENT
THAT OPPOSING COUNSEL MADE ABOUT
A HEART-SHAPED PENDANT AS
OPPOSED TO A BUTTERFLY PENDANT.
>> YOU ARE READING MY MIND,
JUSTICE!
YEAH.
THERE IS TESTIMONY, THAT HE HAD
A HEART-SHAPED NECKLACE ON ALSO.
THAT IS WHAT THAT TESTIMONY IS
ABOUT.
NONE OF THE WITNESSES ARE -- AND
LET ME... I WOULD DIRECT THE
COURT TO 572 AND 577, OF THE
RECORD.
AGAIN, FOLLOWED BY 713 OF THE
RECORD, WHERE MR. BARTON IS
TALKING ABOUT HIM HAVING ON A
HEART-SHAPED NECKLACE AND HE
SAID, YEAH, HE HAD ON THAT BUT
HE WAS NOT ASKED, DID HE OR DID
HE NOT HAVE A BUTTERFLY NECKLACE
ON HIM, THAT BUTTERFLY NECKLACE
WAS ON HIS NEXT UNTIL IT WAS
RIPPED OFF BY HIS VICTIM WHEN HE
KILLED HER AND THAT
MR. JOHNSTON'S WATCH, COVERED
WITH BLOOD AND FOUND IN THE
VICTIM'S APARTMENT BY THE
BATHROOM SINK DOESN'T CHANGE.
HE HAD IT ON SHORTLY PRIOR TO
THE MURDER.
>> I WANT TO ASK YOU, BACK TO
THE FINGER NAIL SCRAPINGS.
DOES THE STATE KNOW OR WAS THERE
ANY INQUIRY AS TO WHETHER THESE
SCRAPINGS STILL EXIST AND HAVE
SUFFICIENT AMOUNT OF MATERIAL TO
ALLOW FOR DNA TESTING?
>> I CAN ANSWER HALF OF THAT
QUESTION.
MY UNDERSTANDING FROM REVIEWING
THE EVIDENCE LOGS MAINTAINED BY
THE POLICE DEPARTMENT IS THAT
ITEMS DENOTED AS, QUOTE,
FINGERNAILS, CLOSE QUOTE, REMAIN
IN EVIDENCE AT ORLANDO PD.
WHETHER OR NOT THERE IS ANYTHING
UNDER OR CONTAINED IN OR ON
THOSE FINGERNAILS THAT CAN BE
TEST ORDER NOT, I DO THE NOT
KNOW.
WHETHER -- AND WHETHER -- AND I
SAY, WHETHER IT CAN OR CANNOT BE
TESTED, I MEAN, FIRST OF ALL,
DOES IT EXIST?
B, IS IT IN SUFFICIENT QUANTITY
TO BE TESTED AND, C, IS IT EACH
IN SUCH A STATE THAT TESTING IS
EVEN POSSIBLE.
I DO NOT KNOW THE ANSWER TO
THOSE QUESTIONS.
>> BUT IT WAS A RELEVANT ISSUE
AT TRIAL, THAT IS, THE
FINGERNAIL SCRAPINGS, AND
MR. HALL, WHO WAS ONE OF THE
WITNESS -- EXPERT WITNESSES WAS
ASKED WHY THEY WERE NOT ANALYZED
AND HIS -- OF COURSE AGAIN, IT
IS PRE-DNA AND HE SAID,
SOMETHING ABOUT IT IS OUTSIDE OF
MY FIELD TO DO IT.
SO, THERE IS NEVER IN THE
MEDICAL -- AND THE MEDICAL
EXAMINER CONFIRMED HE TOOK
SAMPLES FROM THE VICTIM'S
FINGERNAILS AND THERE IS NO REAL
EXPLANATION AS TO WHY THEY
WOULDN'T HAVE BEEN TESTED AND,
OF COURSE, DNA TESTING OF THIS
TYPE WAS NOT AVAILABLE --
CERTAINLY NOT AVAILABLE AT THE
TIME OF TRIAL.
AND THE PROSECUTOR ARGUED THAT
THE VICTIM WAS SCRATCHING AND
CLAWING AT JOHNSTON, BASING THAT
ON THE SCRATCH MARKS.
SO WHETHER YOU CALL IT THAT -- I
MEAN -- LET ME ASK YOU THIS
QUESTION:
IF THESE WERE TESTED AND IT
SHOWED THE DNA UNDER HER
FINGERNAILS DID NOT COME FROM
MR. JOHNSTON AND WAS -- NOT FROM
HER, WOULD THAT BE PRETTY
POWERFUL EVIDENCE?
>> NOT COUPLED WITH ALL OF THE
REST OF IT, BECAUSE, WHAT YOU
HAVE IN THE -- IN THIS CASE,
FIRST OF ALL, MR. JOHNSTON IS
STUCK WITH HIS STORY ABOUT THE
PUPPY SCRATCHING HIS FACE.
THE STATE OF THE EVIDENCE IS,
THAT THAT DID NOT HAPPEN.
IT IS UNDISPUTED THAT THE
BUTTERFLY PENDANT THAT WAS FOUND
IN ENGINE -- ENTANGLED IN THE
VICTIM'S HAIR, HAD A BROKEN
CHAIN.
THAT IS NOT DISPUTED.
IT IS A REASONABLE IN FENCE FROM
THE EVIDENCE --
INFERENCE FROM THE EVIDENCE,
REGARDLESS OF WHAT DNA TURNS UP
IN THE FINGER NAILS, IN THE
COURSE OF THE STRUGGLE, THAT IS
HOW THAT HAPPENED AND BOMB LINE,
JUSTICE PARIENTE, THE STATE'S
CASE DOESN'T CHANGE A BIT, BASED
UPON THE DNA EVIDENCE.
WE HAVE THE VICTIM'S BLOOD ON
THE DEFENDANT.
NEVER HAS BEEN DISPUTED.
IT WAS NEVER DISPUTED UNTIL THIS
MONTH.
>> WAS IT TEST --
>> MATCHED UP AB-O GROUP.
>> AND ON THE CLOTHING.
>> YES, MA'AM.
THAT WAS TESTED TO THE EXTENT OF
1984 TECHNOLOGY.
NO QUESTION ABOUT THAT.
HE'S ALWAYS SAID -- I MEAN, HE
SAID, HE GOT THE VICTIM'S BLOOD
ON HIM AND WHEN HE PICKED HER UP
AND CRADLED HER HEAD AND CRIED
OVER HER BODY WAS THE STORY HE
GAVE IN ONE OF HIS MULTIPLE
STATEMENTS, BUT THE BOTTOM LINE,
YOU HAVE AN ALIBI DEFENSE THAT
COLLAPSED.
YOU HAVE AN ATTEMPT BY JOHNSTON
TO POINT THE FINGER AT THIS
KEVIN WILLIAMS PERSON.
THAT COLLAPSED.
YOU HAVE JOHNSTON TAKING ITEMS
FROM -- RATHER, LET ME BACK UP.
TAKE PILLOW CASE OUT OF THE
VICTIM'S HOUSE AND GATHERING UP
A BUNCH OF ITEMS AND TAKE THEM
NEXT-DOOR AND HIDING THEM AT THE
DEMOLITION SITE NEXT-DOOR WHERE
HE WAS WORKING CLAIMING HE TOOK
THEM AS A MEMENTO OF THE VICTIM.
>> I UNDERSTAND AND YOU ALSO
HAVE A DEFENDANT WHO WAS THE ONE
THAT CALLED THE POLICE AND SAID,
YOU KNOW, CRYING, SOMEBODY
KILLED MY GRANDMA.
SO IT'S NOT LIKE HE -- I MEAN,
COMMITTED THE CRIME AND THEN
TRIED TO HIDE.
HE, I MEAN -- HE CALLED THE
POLICE.
NOW --
>> GAVE THEM A FAKE NAME WHEN HE
DID, TOO.
>> WHAT.
>> GAVE A FALSE NAME WHEN HE
DID.
>> I MEAN, THE HOME -- MAYBE THE
MURDERER IS EXPLAINED BY
SOMEBODY WHO IS MENTALLY ILL, I
MEAN, IT IS A VERY -- SEEMS LIKE
A VERY BIZARRE SET OF
CIRCUMSTANCES.
NOT THAT WE DON'T SEE THIS.
>> FORTUNATELY WE DON'T HAVE TO
-- THEY ARE NOT RATIONAL -- THEY
ARE FREQUENTLY NOT RATIONAL
ACTS.
BUT, LET ME -- SINCE YOU MENTION
THE MENTAL ILLNESS, LET ME --
>> THERE IS NO MENTAL
MITIGATION, IN THE CASE.
>> NO, THAT WAS AN ISSUE IN THE
'90S, THE 1991, 5850, AND '91,
'92, BEFORE I HAD THE CASE, AND
LET ME MENTION AND TOUCH ON THAT
A BIT.
WE ARE SEEING FOR THE FIRST TIME
AND I'M NOT TAKING A SHOT AT
MR. DOSS HE'S DOING A GOOD JOB
AND DOING THIS BEST HE CAN WITH
WHAT HE'S GOT AND THE FACT HE'D
DEFEND THE CASE IN
POSTCONVICTION DIFFERENTLY FROM
THE WAY IT HAS BEEN DONE BEFORE
IS NOT THE STANDARD, NOT WHAT WE
ARE HERE ABOUT.
WE ARE HERE ABOUT AND TO THE
EXTENT WE ARE TALKING ABOUT A
MENTAL ILLNESS CLAIM THAT, CLAIM
HAS NEVER, EVER BEEN RAISED TO
CHALLENGE MR. JOHNSTON'S
STATEMENTS UNTIL NOW.
AND THAT COMPONENT OF IT IS
PROCEDURAL BARRED, JUST LIKE ANY
OF THE OTHER TESTING ISSUES, THE
NON- DNA TESTING IS WHAT I
CALLED IT THAT IS BARRED AND
COULD HAVE BEEN DONE A LONG,
LONG, LONG TIME AGO.
AND IT WASN'T.
I DON'T KNOW WHY AND IT DOESN'T
MATTER, BECAUSE THAT IS A
PROCEDURAL BAR.
AS FAR AS THE DNA TESTING, THERE
IS NO TIME LIMIT ON IT.
BUT, THAT RULE AND THAT -- THE
STATUTE UNDERPINNING THE RULE,
WERE NEVER INTENDED TO BE A ONE
FREE STAY OF EXECUTION RULE.
I WOULD SUGGEST TO THE COURT
THAT THE TIMING OF ALL OF THAT
IS HIGHLY, HIGHLY SUSPECT.
AND I DON'T MEAN THAT IN A
DISPARAGING FASHION.
>> SPEAKING OF TIMING, HOW DO
YOU SEE THE TIMELINE FROM THE
ENACTMENT OF THE STATUTE AND THE
RULE AND HOW IT CORRESPONDS WITH
WHEN COUNSEL WAS APPOINTED AND
REPRESENTING THE GENTLEMAN, AND
WHEN THEY HAD WITHDRAWN OR FILED
MOTIONS TO WITHDRAW?
WHAT IS THE TIMELINE AND WHAT
WOULD THAT SHOW US.
>> WE ARE NOT THAT LATE, JUSTICE
LEWIS, WE ARE IN THE EARLY '90s
WHEN IT COULD HAVE BEEN DONE.
>> THE RULE WAS NOT IN THE EARLY
'90s, I'M ASKING ABOUT THE RULE,
IF YOU ADDRESS THAT, THE STATUTE
THERAPY RULE.
>> HE HAD THE OPPORTUNITY
POST-RULE TO MAKE THE MOTION HAD
HE CHOSEN TO DO SO AND WE --
>> I AGREE AND AGAIN, WOULD YOU
DEGREES WHEN HE HAD A LAWYER AND
WHEN HE DIDN'T?
>> HELP ME OUT OF WHEN THE RULE
TOOK EFFECT, JUSTICE LEWIS AND
I'LL HAVE TO...
>> THE RULE TOOK EFFECT,
PROBABLY, IN THE -- AROUND 2002,
I GUESS.
2, 4...
>> AMENDED IN 2006 AND 2007 TO
REMOVE THE TIME LIMITATIONS.
>> HE HAD A LAWYER, IN THE STATE
-- I'M SORRY.
THE FEDERAL HABEAS PROCEEDING
WHICH WAS LATE '90s AND WAS
REPRESENTED, STILL, BY THAT
ATTORNEY, I BELIEVE, UP UNTIL --
I AM HAVING TROUBLE REMEMBERING
ALL OF THE DATES.
I KNOW MR. MILLS CAME INTO IT,
AROUND 2003, OR 2004.
AND I KNOW THAT IS WHEN
MR. MILLS CAME IN, RIGHT WHEN
THE CASE WAS SENT BACK FOR...
>> MENTAL RETARDATION.
>> LET ME SEE IF I HAVE ANOTHER
TIMELINE TO HELP ME OUT HERE.
>> ISN'T IT THE CASE, THAT WE
HAVE TO LOOK AT THIS, AND
EVALUATE THIS, JUST LIKE WE
WOULD EVALUATE IT, IF HE HAD
RAISED IT, FIVE YEARS AGO.
OR SIX YEARS AGO.
OR, RIGHT AFTER THE RULE WAS
ADOPTED.
BECAUSE, IN ITS CURRENT
INCARNATION, THIS RULE HAS NO
TIME LIMIT.
THERE IS NO BAR IN THE RULES TO
BRINGING THIS UP AT THE 11th
HOUR.
>> THAT'S TRUE, IT'S NOT AND LET
ME -- FOUND THE TIMELINE AND GOT
MY CHEAT SHEET HERE.
HE WAS IN THE COURT IN 2000 ON A
PETITION FOR WRIT OF HABEAS
CORPUS, IN STATE CIRCUIT COURT
IN 2002, ON A 3.851 MOTION, AND
CAME OUT OF THIS COURT MAY THE
4TH OF 2006 WITH AN AFFIRMANCE,
AND YES.
HE HAD COUNSEL THAT WAS ACTIVELY
LITIGATING THAT CASE AND JUSTICE
LEWIS I APOLOGIZE FOR BEING SO
LOW TO GET TO THAT ANSWER FOR
YOU, TOO MANY DATES.
>> ONE LAST QUESTION.
IT SEEMS TO ME IN READING THIS
RECORD, THAT THE... STRUGGLE,
SEEMS TO ME SHE PROBABLY
SCRATCHED HIS FACE AND SEEMS TO
ME THE DNA... PROBABLY IS
UNDERNEATH HER NAIL.
THE NAIL CLIPPINGS, THAT ARE NOW
AT THE ORLANDO POLICE
DEPARTMENT.
WHY NOT JUST TEST IT AND WE'LL
BE SURE?
>> BECAUSE I DON'T MEAN, I DON'T
-- I MEAN NO DISRESPECT.
I REALLY DON'T...
>> [INAUDIBLE].
>> [LAUGHTER].
>> IT IS TOO EARLY FOR THAT,
STILL, BUT THE STANDARD IS NOT
WHAT DOES IT HURT.
THE STANDARD IS, IS THERE A
REASONABLE PROBABILITY OF A
DIFFERENT RESULT?
AND, UNDER THESE FACTS, WITH
THIS EVIDENCE, UNDER THE LEGAL
STANDARD --
>> YOU DON'T THINK A JURY OF 12
PEOPLE, IF THEY HEARD THAT THE
DNA, YOU KNOW, THE BLOOD
UNDERNEATH THE VICTIM'S NAILS,
BELONGED TO SOMEONE ELSE, THAT
THAT WOULD NOT RAISE THE ISSUE
WITH THEM.
>> NO, NOT AGAINST THE REST OF
THE FACTS.
NOT AGAINST THE REST OF THE
FACTS AND NOT AGAINST
MR. JOHNSTON'S PREEMPTIVE FAILED
EXPLANATION FOR THOSE FACTS,
WHICH COULD BE TURNED AROUND AND
ARGUED AS... GUILT YOU HAVE
SUBSTANTIAL OTHER EVIDENCE
WITHOUT THE SCRATCHES ON HIS
FACE, AND HE'S THIS ONE THAT
KILLED THE POOR LADY.
I WOULD SUGGEST THE LOWER COURT
SHOULD BE AFFIRMED IN ALL
RESPECTS, AND ANY STAY OF
EXECUTION SHOULD BE DENIED.
IT IS TIME FOR THE SENTENCE TO
BE CARRIED OUT.
>> THANK YOU, MR. NUNNELLEY,
MR. DOSS.
>> I'D LIKE TO FIRST TAKE ISSUE
WITH THE STATEMENT THAT THE
FINGERNAIL SCRAPINGS, WHETHER OR
NOT THERE IS ANYBODY ELSE'S
FLESH OR BLOOD IS ON THAT, FLIES
IN THE FACE OF THE OTHER
EVIDENCE, YOU CAN LOOK BACK TO
THE CLOSING ARGUMENT, THE
PROSECUTOR ARGUING THERE IS NO
EVIDENCE THAT ANYBODY ELSE WAS
IN THE APARTMENT DAVID
EUGENE JOHNSTON AND I WOULD ASK
YOU TO RETURN A VERDICT THAT
SPEAKS THE TRUTH BECAUSE THAT IS
WHAT A TRIAL IS, THAT IS 989.
AS WELL, THE PROSECUTOR ARGUED,
THAT HAPPENED DURING A VIOLENT
STRUGGLE.
THAT HAPPENED WHEN MARY HAMMOND
WAS FIGHTING FOR HER LIFE, WHEN
MARY HAMMOND WAS FIGHTING FOR
HER LIFE, THAT HAPPENED WHEN
MARY HAMMOND WAS SCRATCHING AND
CLAWING AT DAVID EUGENE JOHNSTON
WHEN SHE SCRATCHED HIS FACE AND
NEXT AND RIPPED THE CHAIN FROM
HIS NECK AND THEN IT LODGED IN
HER HAIR AND IT FLIES IN THE
FACE OF WHAT IS ARGUED HERE
TODAY.
THAT IT DOESN'T MATTER.
IT ABSOLUTELY MATTERS AND EACH
ONE -- EACH ONE OF THE ITEMS OF
EVIDENCE THAT HAS BEEN SUGGESTED
TO YOU THAT CONTINUED DISTRICTS
WHETHER OR NOT SOMEONE ELSE WAS
THERE, I DON'T SEE THE RELEVANCE
OF IT.
IT PALES IN COMPARISON TO THE
DNA OF SOMEONE ELSE, THE PUPPY,
AS WAS ARGUED IS SOMETHING THAT
WAS CONVENIENTLY CONJURED UP AND
MR. MARTIN SAID MR. JOHNSTON HAD
A PUPPY AND THERE IS AN ISSUE AS
TO WHETHER OR NOT IT WOULD
SCRATCH AND I URGE THE COURT TO
TAKE A LOOK.
I HAVE DETAILED IN FOOTNOTE 3,
REGARDING THE BUTTERFLY
NECKLACE, THAT, YES, PATRICIA
MANN INITIALLY STATED SHE HAD
SEEN HIM WEARING THE NECKLACE AT
572 AND LATER ADMITTED WHAT SHE
ACTUALLY SAW WAS THE
HEART-SHAPED PENDANT ON 577.
WHICH WAS ALSO CONFIRMED BY
MARTIN AT 713, A HEART-SHAPED
PEN DAN AND THERE IS ABSOLUTELY
DOUBT, MUCH MORE THAN WHAT THE
STATE WOULD LIKE TO ADMIT.
AS TO THE COURT QUESTIONS
REGARDING TIMING, ONCE THE
MENTAL RETARDATION CLAIM WAS
DENIED BY THE COURT IN 2006 AND
MAY, 2006, MR. MILLS, THEN MOVED
TO WITHDRAW.
HE WITHDREW AND MR. SOLIS WAS
APPOINTED.
AND MR. SOLIS NEVER TOOK TO IT
FEDERAL COURT AND NEVER
PROCEEDED ANYWHERE ELSE AND
ASKED TO WITHDRAW.
>> [INAUDIBLE].
>> I'M -- I COULDN'T --
>> DO YOU KNOW WHY WE ASKED TO
WITHDRAW.
>> HE SAYS THERE WERE NO OTHER
ISSUES, WHICH, WHICH MEANT HE
DIDN'T TAKE IT INTO FEDERAL
HABEAS COURT AND DIDN'T TAKE IT
ANYWHERE AND THAT LANGUAGE, FOR
A WHILE, HE WAS ALLOWED TO
WITHDRAW.
CCRC MENTAL WAS APPOINTED TO THE
CASE.
THEY MADE THEIR MOTION, IT
LANGUISHED.
UNTIL THE DEBT WARRANTED WAS
SIGNED AND JUDGE WADDLES
APPOINTED ME AND MR. JOHNSTON
HAS EFFECTIVELY BEEN WITHOUT
COUNSEL IN MY ESTIMATION SINCE
MAY OF 2006 WHICH IS A PERIOD OF
THREE YEARS, WHICH IS TIME
PERIOD WITHIN WHICH THE TIME BAR
WAS LIFTED, ON OUR RULE OF
CRIMINAL PROCEDURE 3.853 AND MY
RECOLLECTION OF THE AMENDMENT,
LIFTING THE TIME BAR IS 2006 AS
THE JUSTICE SUGGESTED AND WHEN
WE LOOK AT THAT AND WE CONSIDER
THIS CASE, THAT IT CRIES OUT FOR
THE DNA TESTING, AND THIS COURT
REVERSE AND SEND BACK TO THE
TRIAL COURT SO THE TESTING CAN
BE CONDUCTED.
APPRECIATE YOUR TIME.
>> THANK YOU, MR. DOS S AND
THANK YOU MORE NUNNELLEY, AND
THE COURT WILL TAKE ITS MORNING
RECESS FOR FIVE MINUTES.
>> PLEASE RISE.
The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.
David Eugene Johnston v. State of Florida
SC65525 SC09-839
>> THE NEXT CASE ON THIS COURT
DOCKET IS
JOHNSTON VERSUS STATE.
>> GOOD MORNING, MAY IT
PLEASE THE COURT AND
COUNSEL, TODD DALTON ON
BEHALF OF DAVID JOHNSTON, I
BEGIN MY ARGUMENT BY
FOCUSING ON THE DENIAL OF
DNA TESTING THAT WAS
SUBMITTED IN THE CIRCUIT
COURT
THE JUDGE WADDLES HAD
ORDERED AND FOUND THAT THE
EVIDENCE THAT WE HAD
REQUESTED TO BE TESTED WOULD
NOT RESULT IN AN EXONERATION
OF MR. JOHNSTON
>> WAS THERE EVER A
DETERMINATION SPECIFICALLY
AS TO THE FINGERNAIL
SCRAPINGS, WHETHER THERE WAS
-- WHETHER THE EVIDENCE
STILL EXISTED AND WHETHER
THERE WAS SUFFICIENT AMOUNT
TO ALLOW FOR DNA TESTING?
>> JUDGE WADDLES DID NOT --
WADDLES DID NOT MAKE THAT
SPECIFIC FINDING
I HAD COMMUNICATED TO JUDGE
WADDLES I HAD BEEN TO THE
ORLANDO POLICE DEPARTMENT AT
THE HEARING, AND THERE WERE
IN FACT FINGERNAIL CLIPPINGS
THERE
AND I HAVE WENT THROUGH THE
EVIDENCE WITH THE ORLANDO
POLICE DEPARTMENT
REPRESENTATIVES TO DETERMINE
WHETHER OR NOT THIS EVIDENCE
WAS IN FACT THERE
>> THAT EVIDENCE HAS NEVER
BEEN TESTED?
BY ANYBODY?
>> THERE'S NO INDICATION
WHATSOEVER THAT IT'S BEEN
TESTED
AND THE FORENSICS SEROLOGIST
TESTIFIED THAT THERE WAS
BLOOD ON THERE, NOT ENOUGH
FOR SEROLOGY TESTING, DNA,
THERE WASN'T ENOUGH FOR
TESTING, WE'RE TALKING ABOUT
1983, 1984 AND THE
INDICATIONS WAS THERE WAS
FLESH UNDERNEATH THOSE
FINGERNAILS
>> THIS CASE IS OVER 25
YEARS OLD, CORRECT?
>>
>> AND THIS EVIDENCE HAS
BEEN AROUND SINCE THAT TIME?
THAT'S WHAT IS TROUBLING TO
ME, IS WE'VE HAD MULTIPLE
CASES INVOLVING THIS
DEFENDANT, OF COURSE, WE'VE
HAD POST CONVICTION, WE'VE
HAD HABEAS, KEYS GONE TO
FEDERAL COURT, AND YET NO
ONE EVER ASKED TO HAVE
THIS EVIDENCE TESTED BEFORE
WE HEAR, YOU KNOW, 25 YEARS
LATER ON THE EVE OF
EXECUTION AND WE FINALLY GET
A MOTION TO TEST THIS
EVIDENCE, AND YOU KNOW, IT
SEEMS TO ME THAT AS SOON AS
ANY DEFENDANT HAS, IT CAN
WAIT UNTIL THE LAST MOMENT
BEFORE AN EXECUTION IS
SUPPOSED TO TAKE PLACE AND
ASK TO HAVE THIS KIND OF
EVIDENCE TESTED
>> I CAN'T SPEAK TO ANY OF
THE PRIOR COUNSEL
I WAS APPOINTED ON
APRIL 24TH, ONCE THE WARRANT
HAD BEEN SIGNED AND I FILED
IT 12 DAYS LATER AFTER
REVIEWING THE RECORD
>> BUT YOU UNDERSTAND -- WE
UNDERSTAND YOU'RE GOING TO
DO EVERYTHING YOU CAN TO
POSTPONE THE EXECUTION, BUT
GOING BACK, AND I UNDERSTAND
THAT THERE'S NOT A SPECIFIC
TIME BAR FOR THE DNA MOTION,
BUT IN THIS CASE, AND
LOOKING BACK ON ALL THE
PRIOR POST-CONVICTION
PROCEEDINGS, ACTUAL
INNOCENCE DOES NOT LOOK LIKE
THERE WAS EVER THE THRUST OF
THIS PARTICULAR CASE
AND I CAN CERTAINLY
UNDERSTAND WHY, BECAUSE HOW
DO YOU GET AROUND THE
FOOTPRINT OF THE KITCHEN
WINDOW, THE SCRATCH MARKS ON
HIS FACE, AS LATE AS 2:00
A.M., HE DIDN'T HAVE IT, THE
BLOOD-COVERED WATCH FOUND ON
THE BATHROOM COUNTERTOP, THE
BUTTERFLY PENDANT THAT WAS
THE DEFENDANT'S ENTANGLED IN
THE VICTIM'S HAIR, HIS
ADMITTED POSSESSION OF ITEMS
FROM HER HOME, SILVER AWARE,
CANDLE -- SILVERWARE,
CANDLESTICKS, TEA POUT AND
CREATING THESE BOGUS
CONFESSIONS FROM ANOTHER
PERSON THAT HE FABRICATED
I MEAN, THIS SEEMS TO BE A
CASE OF OVERWHELMING GUILT
NOW
I MEAN, WHETHER THIS IS A
MENTALLY ILL DEFENDANT THAT
SOME TIME BACK THAT SHOULD
HAVE BEEN DEVELOPED FURTHER,
AS FAR AS WHAT IS GOING
THROUGH HIS MIND AT THE TIME
OF THE CRIME, THAT'S ANOTHER
STORY
BUT IT DOESN'T SEEM TO ME,
IN TERMS OF THE ACTUAL
INNOCENCE, THAT THERE WAS
ANYTHING THAT THE DEFENSE
LAWYER THOUGHT HE OR SHE
SHOULD BE PURSUING GIVEN ALL
OF THIS OTHER OVERWHELMING
EVIDENCE
>> WELL, WE ARE TALKING
ABOUT A PROFOUNDLY MENTALLY
ILL INDIVIDUAL THAT'S BEEN
THE SUBJECT OF MANY
COMPETENCY HEARINGS WITH
VOLUMINOUS MEDICAL RECORDS
SHOWING HE HAD BEEN FOUND
INCOMPETENT IN KANSAS AND
HAD MANY PSYCHIATRIC
>> AND I'M PUTTING ASIDE
WHETHER THIS IS A MENTALLY
ILL DEFENDANT
I KNOW THAT'S NONE OF YOUR
POINT
BUT AS FAR AS THE ACTUAL
INNOCENCE OR THIS
PROBABILITY OF AN ACQUITTAL
OR THE THRESHOLD FOR THE
3.853, A REASONABLE
PROBABILITY OF AN ACQUITTAL,
NOTHING HAS EVER -- THERE'S
NOTHING THAT TAKES AWAY FROM
ALL OF THOSE ITEMS THAT I'VE
JUST MENTIONED THAT JUST
POINT TO THAT THIS DEFENDANT
KILLED THIS ELDERLY VICTIM
>> I THINK IT DOES, AND
WHERE I WAS GOING WITH THE
FACT OF BEING MENTALLY ILL,
I THINK WE CAN DISCOUNT MUCH
OF WHAT MR. JOHNSON HAS SAID
BECAUSE IT IS THE RAMBLING
OF A MENTALLY ILL MAN
WHEN YOU LOOK AT THE
PENDANT, THE TESTIMONY
REGARDING THE PENDANT, WE
HAD ACTUALLY CITED IN OUR
REPLY BRIEF AS TO THERE WAS
CONFLICTING TESTIMONY ON
THAT WHERE THE GIRLFRIEND
INITIALLY IDENTIFIES IT AS
THE BUTTERFLY PENDANT, BUT
LATER ON, SHE SAYS THAT NO,
HE HAD A HEART-SHAPED
PENDANT ON AND DARREN
MARTIN, THAT WAS THE ROOMMATE
OF MR. JOHNSON, ALSO
TESTIFIED HE HAD A
HEART-SHAPED PENDANT
SO I DON'T THINK THAT THAT'S
AS CONCLUSIVE AS WHAT THE
CIRCUIT COURT HAD MADE IT
OUT TO BE
WE'VE ALSO ASKED TO BE ABLE
TO TEST THE FOOTPRINT
EVIDENCE THAT'S OUT THERE
THAT HAS NEVER BEEN TESTED
THAT BASICALLY WAS JUST SAID
WELL IT APPEARS TO BE THE
TREADWARE WHICH TIES
IN WITH OUR FORENSIC TESTING
MOTION AND THE NATIONAL
ACADEMY OF SCIENCE REPORT
THAT HAS SAID WE NEED
STRICTER STANDARDS, WE NEED
TO HAVE MORE RELIABILITY IN
THIS TESTING
WHEN YOU LOOK AT THE
ARGUMENT I HAD CITED FROM
THE STATE, THEY'VE NEVER
INDICATED THAT THERE WAS
ANYONE ELSE THAT WAS
INVOLVED OTHER THAN
MR. JOHNSTON AND THAT HE WAS
THE ONLY ONE IN THAT HOUSE
MR. JOHNSTON, GRANTED,
THERE'S MUCH INCONSISTENCY
IN WHAT HE SAID, WE CAN
GLEAN THAT HIS STORY IS HE
COMES IN THE HOUSE, WHOEVER
THE ATTACKER AND KILLER WAS
HAD ALREADY PERPETRATED THE
CRIME AND LEFT, SO WE HAVE
--
>> LET ME ASK YOU THIS:
WHAT ABOUT THE BLOOD ON THE
DEFENDANT'S PERSON?
HE'S GOT A SUBSTANTIAL
AMOUNT OF BLOOD ON HIM,
RIGHT?
>> THAT IS CORRECT
>> NOW, IN ALL THESE
DIFFERENT STORIES, HE'S TOLD
-- THAT HE'S TOLD, DID HE
EVER GIVE ANY INDICATION
THAT HE HAD CONTACT WITH
THIS THIRD PARTY
PERPETRATOR?
>> NOT TO MY RECOLLECTION
>> WHAT HE SAID IS HE SAW
SOMEBODY
HE NEVER INDICATED THEY HAD
SOME KIND OF COLLISION THAT
WOULD HAVE RESULTED IN THE
TRANSFER OF BLOOD FROM THIS
THIRD PARTY TO HIM, AND SO
THE BLOOD, WE CAN GLEAN FROM
THAT, WOULD BE TOTALLY --
TOTALLY INCONSISTENT
IF YOU'RE LOOKING FOR SOME
EVIDENCE THERE, IT WAS -- IT
WOULD BE TOTALLY
INCONSISTENT WITH ANYTHING
THE DEFENDANT EVER SAID,
RIGHT?
>> I DON'T THINK SO
HE HAD TESTIFIED THAT HE
COMES IN AT ONE POINT -- OR
THAT HE MAKES A STATEMENT,
HE NEVER TESTIFIED, BUT HE
MAKES A STATEMENT THAT HE
COMES IN THE ROOM AND
APPROACHES TO WHERE THE
VICTIM IS AND LEANS DOWN AND
GRABS A HOLD OF HER ON THE
BED
WE DON'T KNOW IF THERE'S ANY
MIX OF THIS OTHER
PERPETRATOR WITH HIS BLOOD
OUT SOMEWHERE THERE BECAUSE
THE INDICATION FROM HER
FINGERNAILS IS SHE STRUGGLED
WITH WHOEVER THE ATTACKER
WAS, THUS THE BLOOD AND THE
FLESH ON THERE, AND I THINK
OUT OF ALL THE THINGS WE'VE
REQUESTED TESTING THAT
THAT'S THE MOST DEFINITIVE,
BECAUSE WHEN YOU LOOK AT THE
CLOSING ARGUMENT, THE
CLOSING ARGUMENT THAT THE
PROSECUTOR AT THE TIME MAKES
IS THIS VICTIM IS SCRATCHING
AND CLAWING FOR HER LIFE ON
HER BED AND THAT'S WHERE THE
SCRATCH ON MR. JOHNSTON'S
FACE HAD COME FROM, AS
OPPOSED TO HIS STORY THAT HE
HAD IN FACT PURCHASED A
PUPPY THAT DAY AND WHEN HE
WAS MAKING WITH THE PUPPY
THAT IT HAD SCRATCHED HIM
THERE IS EVIDENCE TO
CORROBORATE THE FACT THAT HE
DID BUY A PUPPY THAT DAY,
THERE IS OTHER TESTIMONY TO
SAY THAT WELL, I DIDN'T SEE
A SCRATCH ON HIM WHENEVER HE
LEFT AT 12:00 WITH THE TIME
AND DEATH BEING SOMEWHERE
BETWEEN 3:00 AND 4:00, BEST
WE CAN TELL
THE EVIDENCE OF THOSE
FINGERNAILS, THOUGH, I
THINK, IS CRITICAL HERE
IT WASN'T AVAILABLE BACK IN
1983-'84, WE HAD THE SIMPLE
SEROLOGY TESTING THAT WAS
NOT NEAR AS ACCURATE AS WE
HAVE NOW, PARTICULARLY THE
MITOCHONDRIAL TESTING OR THE
REPEAT TESTING WE CAN NOW DO
THE FURTHER CERTAIN AND I
CITE THUNDERSTORM IN MY
BRIEF IS THE CASE THAT'S
CURRENTLY PENDING BEFORE THE
U.S. SUPREME COURT,
OSBOURNE, WHERE IT DEALS
WITH ACCESS TO DNA EVIDENCE
AND WHETHER OR NOT DENYING
ACCESS TO THE DNA EVIDENCE
IS A DUE PROCESS VIOLATION
IN AND OF ITSELF, AND I
THINK THAT MR. JOHNSTON HAS
A RIGHT HERE AS TO ACCESSING
THIS EVIDENCE AND HAVING IT
TESTED, AND THAT WHEN WE
LOOK AT IT IN THE SCHEME OF
THINGS, THAT THE TESTING
WON'T TAKE THAT LONG
IT'S EITHER GOING TO BE
SHOWING THAT SOMEONE ELSE'S
DNA IS THERE OR IT'S GOING
TO BE SHOWING THAT HIS DNA
IS THERE, OR POSSIBLY
INCONCLUSIVE
AT THAT POINT, IT'S MUCH
MORE DEFINITIVE AS FAR AS
GOING FORWARD WITH THE
EXECUTION OF MR. JOHNSTON
HE'S COMPLIED WITH EVERY
ASPECT OF 3.853, WITH NO
TIME LIMITATION BEING THERE
I UNDERSTAND THIS COURT'S
CONCERN, BUT THERE'S NO TIME
LIMITATION THERE, AND
MR. JOHNSTON HAS LAID OUT
EACH AND EVERY ASPECT OF
3.853, THE ONLY THING THAT
JUDGE WADDLES
IS HUNG ON IS THIS
EVIDENCE THAT WOULD
EXONERATE HIM OR NOT
NOW, WHEN I DISCUSSED THE
FIRST BORN CASE, I USE THAT AS
A PREDICATE TO ESTABLISH
THAT WE'RE ALSO ENTITLED TO
THIS FORENSIC EVIDENCE
THAT'S THERE, SUCH AS THE
FOOTPRINT
I HAVE REPRESENTED TO JUDGE
WADDLES THERE IN THE TRIAL
COURT THAT I'VE PERSONALLY
SEEN THE CASTS, THE CASTS
ARE STILL THERE, THE
FOOTPRINT EVIDENCE IS STILL
THERE SO THAT WE CAN HAVE
SOMEONE DO A MORE RIGOROUS
EXAMINATION THAN WHAT WAS
REVEALED IN THE TRIAL
TRANSCRIPT, WHICH BASICALLY
THEY JUST SAID IT APPEARED
TO BE SO
THEY DIDN'T REALLY GO
THROUGH A WHOLE LIST OF
QUALIFICATIONS
>> NOW, ON SOMETHING THAT'S
NOT BEING DNA TESTED, AND
YOU'VE SAID THE FOOTPRINT
HAS -- THE CAST HAS BEEN
THERE, YOU DON'T HAVE A
FREESTANDING RIGHT JUST TO
HAVE ANYTHING TESTED
I MEAN, THE GOVERNOR CAN SAY
YES, I CAN GET IT TESTED BUT
IT CAN'T -- IF IT CAN'T BE
DNA TESTS, WHERE IS THE
AUTHORITY THIS COURT HAS IN
-- LET'S SAY LET'S ORDER
TESTING OF ALL OTHER ITEMS?
>> I HAD CITED TO THE
OSBOURNE CASE WHERE THE
ARGUMENT WAS MADE --
>> THE U.S. SUPREME COURT
>> IT'S BEFORE THE U.S.
SUPREME COURT, HOWEVER, THE
UNITED STATES NINTH CIRCUIT
OF APPEALS HAD INDICATED IT
DIDN'T LIMIT THEIR RULING TO
DNA EVIDENCE
IT SAID BIOLOGICAL EVIDENCE
I THINK THAT THAT'S MORE --
>> BUT YOU WOULD AGREE THE
STATUTE WHICH DOESN'T HAVE A
TIME LIMIT IS LIMITED TO DNA
EVIDENCE?
>> ABSOLUTELY 3.853 IS
LIMITED TO DNA EVIDENCE, AND
THAT'S WHY JUDGE PARIENTE,
BROUGHT IT IN TWO MOTIONS,
BECAUSE I UNDERSTAND WE'RE
TALKING ABOUT TWO SEPARATE
MECHANISMS, TWO SEPARATE --
>> WAS THE FOOTPRINT EVER
CHALLENGED?
I KNOW THAT THERE HAVE BEEN
CASE THAT IS TALK ABOUT A
LOT OF THE SCIENCE THAT IS
USED
THE FOOTPRINT ANALYSIS HAS
COME UNDER FIRE AS ONE OF
THE AREAS THAT REALLY ISN'T
AS ACCURATE AS WE MIGHT HAVE
FIRST THOUGHT, BECAUSE AS
JUDGE QUINCE SAID, THERE
HAVE BEEN CONVICTION PHASE A
COUPLE OF DECADES AND I
DON'T RECALL THERE BEING A
CHALLENGE, REFRESH MY
RECOLLECTION, TO THE
FOOTPRINT EVIDENCE
>> I DON'T RECALL THAT THAT
HAD EVER BEEN CHALLENGED
HAD IT BEEN CHALLENGED, I
WOULD HAVE PRESENTED IT TO
THE COURT WHATEVER THE
RESULTS WITH WERE AND I
CAN'T ANSWER THE QUESTION AS
TO WHY IT HASN'T BEEN
>> I THINK POST-CONVICTION,
IT WASN'T ARGUED THAT NOW WE
HAVE A FOOTPRINT EXPERT THAT
CAN SHOW THIS MIGHT NOT BE
OR WASN'T MR. JOHNSTON'S
FOOTPRINT
>> I HAVE NO INDICATION --
>> I MEAN, I UNDERSTAND, YOU
CAME IN APRIL, AND YOU ARE
CERTAINLY, HAVE DONE A YEOMAN'S
JOB ON MR. JOHNSON'S HALF BUT
THROWING ALL OF THIS OUT AFTER
25 YEARS, IS -- YOU KNOW, IS
JUST -- TURNS THE PROCESS ON ITS
HEAD.
AND THE TIME LIMITS THAT ARE
IMPORTANT FOR, YOU KNOW, IN THE
SCHEME OF THE WAY DEATH CASES GO
AND I THINK -- I DON'T THINK ANY
AUTHORITY, FOR TO YOU ORDER
ANYTHING OTHER THAN THAT -- THE
DNA TESTING ASSUMING, THERE IS A
THRESHOLD ON THAT.
>> I THINK THERE IS A DUE
PROCESS RIGHT AND THAT IS WHY I
SPECIFICALLY LINKED IT TO
OSBORNE AND ALSO, IT DOVETAILS
INTO THE NEWLY DISCOVER CLAIM
REGARDING THE NATIONAL ACADEMY
OF SCIENCES REPORT THAT CAME OUT
AND CALLS INTO QUESTION, MUCH OF
WHAT HAS BEEN DONE, IN THESE
OTHER FORENSIC SCIENCE AREAS, AS
ILLUMINATED BY DNA TESTING --
>> HAVEN'T WE REALLY CROSSED THE
BRIDGE WITH REGARD TO STUDIES
AND THOSE KINDS OF THINGS WITH
REGARD TO WHETHER THESE THINGS
ARE REALLY NEWLY DISCOVERED
EVIDENCE.
AS OPPOSED TO FACTUAL MATTERS
DEALING WITH THE CASE, HAVEN'T
WE ALREADY CROSSED THAT...
>> MY UNDERSTANDING OF THE
COURT'S CASE LAW REGARDING THAT
IS THAT IT NEEDS TO BE TIED
SPECIFICALLY TO A PARTICULAR
CASE, AND I AM AWARE OF RUTH
FORD AND THAT -- THE WHOLE LINE
OF CASE THAT'S DEALT WITH THE
ABC REPORT WHICH I SUBMITTED A
MUCH MORE GENERAL REPORT THAN
WHAT WE HAD WITH THE NATIONAL
ACADEMY OF SCIENCES AND IS MORE
IN LINE WITH WHAT I CITED, WHERE
THE COURT RELINQUISHED
JURISDICTION SO TREPAL COULD
HAVE AN EVIDENTIARY HEARING AND
THE ABILITY TO LINK THE FBI
REPORT REGARDING FRAUD IN THAT
LAB TO HIS CASE, THE COURT NEVER
INDICATED THIS WASN'T
NECESSARILY NEWLY DISCOVERED
EVIDENCE, IN AT THE TREPAL CASE
AND IT SAID IT WASN'T
ESTABLISHED THAT IT ROSE TO THE
LEVEL OF WARNING RELIEF FOR
TREPAL I DIDN'T TAKE THAT AS A
CATEGORICAL EXEMPTION AND I
SPECIFICALLY -- DIDN'T LINK IT
SPECIFICALLY TO THE CASE AND THE
SPECIFIC PIECES OF EVIDENCE THAT
WERE ADMITTED INTO
MR. JOHNSTON'S CASE SO THAT THIS
COURT COULD SEE, THE VALUE OF
THAT.
AND I THINK, TOO, WHEN WE ARE
TALKING ABOUT THAT KIND OF
EVIDENCE AND TALKING ABOUT
EXONERATION THERE WERE 14 PRINTS
THAT WERE LIFTED WITHIN THE
VICTIM'S HOME.
FOR YOU WERE USABLE.
AND WERE ACTUALLY COMPARED TO
MR. JOHNSTON TO THE VICTIM AND
TO KEVIN WILLIAMS, THE SUBJECT
OF ALERT SUPPOSEDLY WRITTEN BY
HIM AND LATER DEBUNKED AND IT
DIDN'T MATCH THAT AND WHEN WE
COME AND ASK ABOUT EXONERATION
AND THE POSSIBILITY THAT THERE
IS SOMEONE ELSE'S FLESH AND
SOMEONE ELSE'S BLOOD UNDER
THERE, AT A REASONABLE
PROBABILITY THERE IS SOMETHING
ELSE THERE AND IT IS HEIGHTENED
BY MR. JOHNSTON'S MENTAL ILLNESS
THAT HE IS -- RAMBLING OF A
PROFOUNDLY MENTALLY ILL MAN AND
I THINK IT IS BEYOND DISPUTE
HE'S MENTALLY ILL AND HEIGHTNESS
THE NEED TO CORROBORATE WHAT
HE'S SAYING AND SIT IN CONTRAST
TO WHAT THE PROSECUTOR ARGUED IN
CLOSING ARGUMENT I CITED IN MY
BRIEF.
>> YOU ARE WELL INTO YOUR
REBUTTAL IF YOU WANT TO SAVE
SOME TIME.
>> THANK YOU VERY MUCH.
>> MR. NUNNELLEY.
>> I REPRESENT THE STATE OF
FLORIDA.
LET ME START --
>> COULD YOU START IN THE PART?
HOW LONG DID MR. JOHNSTON
EFFECTIVELY NOT HAVE A LAWYER
BECAUSE THE PRIOR LAWYER OR THE
CTCC HAD MOVED FOR WITHDRAWAL,
WHAT IS THE TIMEFRAME?
>> IF I... I'M MATH CHALLENGED
THIS MORNING, JUSTICE PARIENTE.
MAYBE A YEAR.
I THINK --
NO, NO, I'M SORRY, NOVEMBER OF
LAST YEAR, I BELIEVE, IS WHEN
THE MOTION TO WITHDRAW WAS
FILED.
>> AND THEY -- WHAT WAS THE
BASIS FOR THEIR MOVING FOR
WITHDRAWAL.
>> THEY WERE TOO BUSY.
>> THIS IS THE CTRC MENTAL.
>> YES MA'AM THE BASIS OF THEIR
MOTION TO WITHDRAW WAS THEY WERE
TOO BUSY TO DO THE CASE.
>> AND WHEN IT WAS SIGNED, THE
JUDGE HEARD IT AND DECIDED THEY
WEREN'T TOO BUSY AND APPOINTED
MR. DODD AS COUNSEL.
>> WELL, JUDGE WALLACE NEVER --
HE LET CCRC OUT ON THE POINT OF
MR. DOS AND DIDN'T MAKE FINDINGS
ON WHETHER THEY WERE TOO BUSY,
THEY WERE THERE AND SAID WE
CAN'T DO IT WEEKS HAVE THE FILES
BOX U. DOWNSTAIRS AND THE JUDGE
SAID, MR. DOSS YOU WOULDN'T TAKE
THE -- WANT TO TAKE THE CASE AND
TO HIS CREDIT, HE SAID, YES,
SIR, I AM.
>> BUT AT THE POINT THEY SAID
THEY WERE TOO BUSY WAS THERE
ANYTHING GOING ON IN MORE
JOHNSTON'S CASE?
>> NO.
>> HAVE THEY JUST...
>> [INAUDIBLE].
>> YOU GOT THE FREE BE I GUESS.
>> THAT'S OKAY.
>> I'M I MEAN, I'M CONCERNED
BECAUSE WARRANTS ARE GETTING
SIGNED AND THIS ENDED UP
HAPPENING, THIS IS -- IT IS
DETRIMENTAL TO THE
ADMINISTRATION OF JUSTICE IF YOU
HAVE A NEW LAWYER JUMPING IN
LESS THAN 30 DAYS BEFORE AN
EXECUTION AND NOW HAVING TO LOOK
AT THE WHO'LL THING AND NOW,
MAYBE CCR MENTAL SHOULD HAVE
BEEN LOOKING AT THE ISSUE, IT
SEEMS LIKE THE FINGER IS NOW...
[INAUDIBLE] CAN YOU HELP ME
ANYBODY MORE ON WHETHER THINGS
STARTED TO HAPPEN, IN
MR. JOHNSTON'S CASE AND CCRC
MENTAL SAYS WE ARE TOO BUSY OR
JUST FILED IT IN MR. JOHNSTON'S
CASE AND NO OTHER CASE?
WE CAN'T REPRESENT THE DEFENDANT
BECAUSE WE ARE TOO BUSY.
>> LET ME ANSWER THAT IN THE
WAY:
OKAY.
THE LAST PROCEEDING -- LAST RUN
THROUGH THIS COURT WAS THE
MENTAL RETARDATION PROCEEDING IN
2006.
WHEN MR. JOHNSTON WAS
REPRESENTED BY ED MILLS.
MR. MILLS HANDLED THAT --
>> AND WHO WAS HE.
>> HE WAS REGISTRY COUNSEL
APPOINTED BY JUDGE WALLACE WHO
REPRESENTS MR. JOHNSTON AS I
RECALL AND THIS IS A LOT OF
DUSTY FILES, JUSTICE PARIENTE
BUT BOTTOM LINE, MR. MILLS WAS
APPOINTED, TRIED THE MENTAL
RETARDATION HEARING, AND STAYED
IN THE CASE, FOR A PERIOD OF
TIME, AFTER THAT, I DON'T
HONESTLY REMEMBER IF HE SOUGHT
CERTIFICATE REVIEW OR NOT, I
DON'T KNOW, DOESN'T MATTER,
ULTIMATELY, MR. MILLS SAID --
APPARENTLY REACHED THE
CONCLUSION THERE IS NOTHING MORE
I CAN DO AND FILED THE MOTION TO
WITHDRAW WHICH WAS GRANTED.
>> BUT UNDER THE SYSTEM HE'S
SUPPOSED TO STAY IN UNTIL THE
EXECUTION.
ISN'T THAT -- I MEAN, WE NEED --
THESE THINGS, BECAUSE WE NEED TO
KNOW THERE HAS BEEN -- I THINK
THE ATTORNEY GENERAL'S OFFICE
NEEDS TO MAKE SURE THE
GOVERNOR'S OFFICE NEEDS TO KNOW
THE SYSTEM MAY START TO BE
BREAKING DOWN, BECAUSE EITHER
THERE ARE NOT EFFICIENT REGISTRY
COUNSEL FOR CCRC MENTAL OR STAFF
ARE TOO BUSY, WE CAN'T THEN --
IT PUTS THIS COURT IN A POSITION
OF INSTEAD OF MR. JOHNSTON
HAVING ONE PERSON REPRESENTING
HIM OVER THE LASTING, YOU KNOW,
DECADE, HE'S NOW HAVING SOMEBODY
COMING IN FOR THIS AND SOMEONE
COMING IN FOR THAT, AND MAYBE
THAT IS THE REASON WHY NOBODY
LOOKED AT THE WHOLE CASE TO SAY,
THERE IS AN ISSUE THAT NEEDS TO
BE EXPLORED.
>> AFTER MR. MILLS WAS ALLOWED
OUT, ANOTHER REGISTRY ATTORNEYS
WAS PROMPTLY APPOINTED, A
MR. SOLIS I BELIEVE IT IS.
SOLIS, I THINK.
AND HE APPOINTED TO THE CASE, BY
JUDGE WADDLES, AND SOME SEVERAL
MONTHS, 6, 8, 10 MONTHS, LATER,
HE FILES A MOTION TO WITHDRAW.
STATING THAT I HAVE REVIEWED THE
FILES AND RECORDS AND I SEE
NOTHING THAT I CAN RAISE.
>> MR. NUNNELLEY, HEARS MY
CONCERN, YOU HAVE A CASE, THE
DEFENDANT IS IN NO HURRY FOR...
[INAUDIBLE] THEY FILE A MOTION
TO WITHDRAW.
DISMISSED.
NO ONE IS SCHEDULED FOR THE
HEARING.
[INAUDIBLE] INTO THIS WOULD BE
THE CCR MOTION.
>> RIGHT.
MOTION TO WITHDRAW AND UNTIL
THAT IS RESOLVED, I THINK YOU
KNOW, YOUR OFFICE KNOWS, THE
CASE IS NOT GOING ANYWHERE.
WHY IS IT THAT YOUR OFFICE
[INAUDIBLE] WHY DID YOU NOT
SCHEDULE IT FOR A HEARING.
>> THERE WAS NO ACTION GOING ON
IN THE CASE.
CCRC HAD MOVED TO WITH DRAW, IT
WAS THEIR MOTION AND WOULD HAVE
BEEN THEIR BURDEN TO SEEK A
RULING ON THAT MOTION, AND UNTIL
THAT MOTION IS RULED ON THEY
REPRESENT THE MAN, THEY ARE
STATUTORILY CHARGED TO REPRESENT
HIM.
>> THEY FILED A MOTION, DIDN'T
SCHEDULE IT FOR A HEARING.
IT SITS THERE FOR A YEAR.
WHY DOESN'T YOUR OFFICE SCHEDULE
FOR A HEARING, AD AND LET'S
BRING IT TO A HEAD AND GET GOING
ON THIS.
OTHERWISE, IT HAPPENS WHEN THE
GOVERNOR SIGNS THE EXECUTION
WARRANT.
>> I CANNOT GIVE YOU AN ANSWER
FOR THAT.
PERHAPS WE SHOULD HAVE.
BUT, ON THE OTHER HAND, CCR AS
THE MOVING PARTY, IS THE ONE
THAT HAS THE BURDEN TO GET THE
CASE IN FRONT OF THE COURT.
IF THEY WERE -- IF THEY WANT TO
-- A RULING ON THEIR MOTION THEY
NEED TO ASK FOR IT.
>> YOU ARE SAYING, THERE WAS A
SECOND REGISTRY COUNSEL WHO THEN
MOVED TO WITHDRAW AND IS THAT
WHEN --
>> CCRC WAS APPOINTED AND IT WAS
SOMETIME AFTER THAT, NOT
IMMEDIATELY, SOMETIME LATER,
THAT THEY CAME IN, SAYING, WE
ARE TOO BUSY TO HANDLE THIS
CASE.
>> THE IMPLICATION THERE IS,
THERE ARE OTHER THINGS THAT ARE
AVAILABLE TO DO, WE ARE JUST TOO
BUSY TO DO IT, BECAUSE,
CERTAINLY, CAN'T BE TOO BUSY TO
DO NOTHING.
WHICH IS WHAT YOU ARE SAYING THE
OTHER REGISTRY COUNSEL --
>> THEY DID NOT SAY THAT THEY
WERE TOO BUSY TO DO NOTHING.
THEY SAID, WE CAN NOT -- CANNOT
TAKE THIS CASE INTO OUR OFFICE.
>> LET ME ASK YOU, AND MAYBE
THIS IS WHERE YOU ARE GOING.
I'M CONCERNED, I DON'T KNOW HOW
CONCERNED I AM, BUT I AM
CONCERNED THAT DNA TESTING WAS
NEVER DONE ON THESE FINGER NAIL
SCRAPINGS, WHICH COULD EITHER
CONCLUSIVELY SHOW MR. JOHNSTON
IS THE PERPETRATOR, OR, RAISE
GENUINE CONCERNS IF IT IS
POINTED TO ANOTHER PERSON, I
MEAN, DNA, WHY DIDN'T THE STATE
JUST SAY, YOU KNOW, OKAY.
WE'LL HAVE THIS -- THESE
FINGERNAIL DESCRIPTIONS, DNA
TESTED AND HOW COME THAT WAS
NEVER DONE?
I DON'T UNDERSTAND IT.
>> I'LL GIVE YOU TWO ANSWERS AND
I DON'T MEAN TO BE INTEMPERATE
WITH THE FIRST ONE --
INTEMPERATE WITH THE FIRST ONE,
JUSTICE, I REALLY DON'T BUT IT'S
NOT THE STATE'S BUSINESS TO
RETRY FINAL CASES AND THIS
SECOND REASON WHICH IS REALLY
THE FIRST REASON I SUPPOSE, IS
THIS IS NOT AND NEVER HAS BEEN A
LABORATORY EVIDENCE CASE.
THIS IS A CASE THAT IS BASED
UPON THE EVIDENCE THAT YOU
DISCUSSED WITH MR. DOSS THE
BUTTERFLY PENDANT FOUND IN THE
VICTIM'S HAIR AND THE BLOOD ON
THE DEFENDANT'S CLOTHING, THAT
HAS NEVER, EVER, EVER BEEN
DISPUTED AS TO WHOSE IT WAS,
UNTIL MAY OF THIS YEAR.
THE FOOTPRINT FOUND OUTSIDE THAT
HAS NEVER, EVER, EVER BEEN
DISPUTED IN 25 YEARS, UNTIL NOW
--
>> DID MR. JOHNSTON SAY AT SOME
POINT THAT HE PICKED THE VICTIM
UP.
>> YES, MA'AM --
>> FOUND HER AND SO, I MEAN,
THEORETICALLY THAT IS HOW SOME
BLOOD COULD HAVE GOTTEN ON HIS
PERSON.
>> THIS IS --
>> WAIT A MINUTE.
OKAY.
>> I'M SORRY.
>> THERE ARE OTHER EXPLANATIONS
FOR SOME OF THE EVIDENCE THAT --
EXPLANATIONS FOR SOME OF THE
EVIDENCE WE DO HAVE AGAINST HIM
AND THAT IS WHY IT IS OF CONCERN
THAT THESE OTHER PIECES OF
EVIDENCE WERE NEVER TESTED.
I AM TRULY CONCERNED THAT WE
DON'T HAVE A RULE THAN REQUIRES
YOU, IF THERE IS SOMETHING YOU
WANT TO HAVE TESTED, THAT YOU
ASK FOR THE IT BEFORE YOU KNOW,
THE GOVERNOR SIGNS A DEATH
WARRANT, BUT, BE THAT AS IT MAY
IT SEEMS TO ME THAT SOME OF THE
OTHER EVIDENCE AGAINST
MR. JOHNSTON, THERE ARE OTHER
EXPLANATIONS FOR.
THIS SEEMS TO BE REALLY
SOMETHING THAT COULD, YOU KNOW,
PUT THE NAIL ON IT, AS IT WERE,
BECAUSE IT'S EITHER HIS DNA
UNDER THE LADY'S FINGER NAILS OR
IT ISN'T.
>> LET ME ANSWER THAT BEST I
CAN, YOU MAY HAVE TO HELP ME OUT
WITH SOME OF THIS HERE, JUSTICE
QUINCE, I'M NOT SURE I WILL BE
ABLE TO REMEMBER ALL OF IT.
THE BOTTOM LINE IS THAT
MR. JOHNSTON HAS HAD THE
AVAILABILITY OF DNA TESTING WHEN
HE WAS REPRESENTED BY OLD CCR.
CCR-NORTH, BEFORE THEY WERE
DISSOLVED.
HE COULD HAVE SOUGHT DNA TESTING
THEN.
ANDREWS HAD JUST COME OUT.
EVERYBODY KNEW ABOUT DNA.
HE DIDN'T DO IT.
YOU HAVE IN THE CASE, WHILE
MR. JOHNSTON, THROUGH HIS
STATEMENTS, HAS TRIED TO EXPLAIN
-- AND I BELIEVE THERE ARE
EITHER FIVE OR SIX OF THEM, HE
TRIED TO EXPLAIN AWAY EVERYTHING
KIND OF PIECE BY PIECE, WHEN HE
FOUND OUT, FOR EXAMPLE, THAT LAW
ENFORCEMENT KNEW THAT HE HAD
THAT HE HAD SCRATCHES ON HIS
FACE AND NEXT, HE SAID I BOUGHT
A PUPPY AND THE PUPPY SCRATCHED
ME.
WHEN HE FINDS OUT THE BUTTERFLY
PENDANT IS TANGLED UP IN THE
VICTIM'S HAIR, HE SAYS, OH, I
HAVE KNOWN HER TWO OR THREE
YEARS AND I GAVE IT TO HER AS A
GIFT.
NEVER MIND THE FACT THAT HIS
FORMER FIANCEE TESTIFIED THAT
SHE -- AND SHE WORKED IN A
CONVENIENCE STORE, NOT TERRIBLY
FAR FROM THE CRIME SCENE,
TESTIFIED THAT SHE GAVE THAT
NECKLACE TO HIM AND THAT HE WAS
WEARING IT WHEN SHE SAW HIM,
SHORTLY BEFORE THE MURDER TOOK
PLACE.
NOW, THERE WAS TESTIMONY --
>> CAN YOU ADDRESS THE COMMENT
THAT OPPOSING COUNSEL MADE ABOUT
A HEART-SHAPED PENDANT AS
OPPOSED TO A BUTTERFLY PENDANT.
>> YOU ARE READING MY MIND,
JUSTICE!
YEAH.
THERE IS TESTIMONY, THAT HE HAD
A HEART-SHAPED NECKLACE ON ALSO.
THAT IS WHAT THAT TESTIMONY IS
ABOUT.
NONE OF THE WITNESSES ARE -- AND
LET ME... I WOULD DIRECT THE
COURT TO 572 AND 577, OF THE
RECORD.
AGAIN, FOLLOWED BY 713 OF THE
RECORD, WHERE MR. BARTON IS
TALKING ABOUT HIM HAVING ON A
HEART-SHAPED NECKLACE AND HE
SAID, YEAH, HE HAD ON THAT BUT
HE WAS NOT ASKED, DID HE OR DID
HE NOT HAVE A BUTTERFLY NECKLACE
ON HIM, THAT BUTTERFLY NECKLACE
WAS ON HIS NEXT UNTIL IT WAS
RIPPED OFF BY HIS VICTIM WHEN HE
KILLED HER AND THAT
MR. JOHNSTON'S WATCH, COVERED
WITH BLOOD AND FOUND IN THE
VICTIM'S APARTMENT BY THE
BATHROOM SINK DOESN'T CHANGE.
HE HAD IT ON SHORTLY PRIOR TO
THE MURDER.
>> I WANT TO ASK YOU, BACK TO
THE FINGER NAIL SCRAPINGS.
DOES THE STATE KNOW OR WAS THERE
ANY INQUIRY AS TO WHETHER THESE
SCRAPINGS STILL EXIST AND HAVE
SUFFICIENT AMOUNT OF MATERIAL TO
ALLOW FOR DNA TESTING?
>> I CAN ANSWER HALF OF THAT
QUESTION.
MY UNDERSTANDING FROM REVIEWING
THE EVIDENCE LOGS MAINTAINED BY
THE POLICE DEPARTMENT IS THAT
ITEMS DENOTED AS, QUOTE,
FINGERNAILS, CLOSE QUOTE, REMAIN
IN EVIDENCE AT ORLANDO PD.
WHETHER OR NOT THERE IS ANYTHING
UNDER OR CONTAINED IN OR ON
THOSE FINGERNAILS THAT CAN BE
TEST ORDER NOT, I DO THE NOT
KNOW.
WHETHER -- AND WHETHER -- AND I
SAY, WHETHER IT CAN OR CANNOT BE
TESTED, I MEAN, FIRST OF ALL,
DOES IT EXIST?
B, IS IT IN SUFFICIENT QUANTITY
TO BE TESTED AND, C, IS IT EACH
IN SUCH A STATE THAT TESTING IS
EVEN POSSIBLE.
I DO NOT KNOW THE ANSWER TO
THOSE QUESTIONS.
>> BUT IT WAS A RELEVANT ISSUE
AT TRIAL, THAT IS, THE
FINGERNAIL SCRAPINGS, AND
MR. HALL, WHO WAS ONE OF THE
WITNESS -- EXPERT WITNESSES WAS
ASKED WHY THEY WERE NOT ANALYZED
AND HIS -- OF COURSE AGAIN, IT
IS PRE-DNA AND HE SAID,
SOMETHING ABOUT IT IS OUTSIDE OF
MY FIELD TO DO IT.
SO, THERE IS NEVER IN THE
MEDICAL -- AND THE MEDICAL
EXAMINER CONFIRMED HE TOOK
SAMPLES FROM THE VICTIM'S
FINGERNAILS AND THERE IS NO REAL
EXPLANATION AS TO WHY THEY
WOULDN'T HAVE BEEN TESTED AND,
OF COURSE, DNA TESTING OF THIS
TYPE WAS NOT AVAILABLE --
CERTAINLY NOT AVAILABLE AT THE
TIME OF TRIAL.
AND THE PROSECUTOR ARGUED THAT
THE VICTIM WAS SCRATCHING AND
CLAWING AT JOHNSTON, BASING THAT
ON THE SCRATCH MARKS.
SO WHETHER YOU CALL IT THAT -- I
MEAN -- LET ME ASK YOU THIS
QUESTION:
IF THESE WERE TESTED AND IT
SHOWED THE DNA UNDER HER
FINGERNAILS DID NOT COME FROM
MR. JOHNSTON AND WAS -- NOT FROM
HER, WOULD THAT BE PRETTY
POWERFUL EVIDENCE?
>> NOT COUPLED WITH ALL OF THE
REST OF IT, BECAUSE, WHAT YOU
HAVE IN THE -- IN THIS CASE,
FIRST OF ALL, MR. JOHNSTON IS
STUCK WITH HIS STORY ABOUT THE
PUPPY SCRATCHING HIS FACE.
THE STATE OF THE EVIDENCE IS,
THAT THAT DID NOT HAPPEN.
IT IS UNDISPUTED THAT THE
BUTTERFLY PENDANT THAT WAS FOUND
IN ENGINE -- ENTANGLED IN THE
VICTIM'S HAIR, HAD A BROKEN
CHAIN.
THAT IS NOT DISPUTED.
IT IS A REASONABLE IN FENCE FROM
THE EVIDENCE --
INFERENCE FROM THE EVIDENCE,
REGARDLESS OF WHAT DNA TURNS UP
IN THE FINGER NAILS, IN THE
COURSE OF THE STRUGGLE, THAT IS
HOW THAT HAPPENED AND BOMB LINE,
JUSTICE PARIENTE, THE STATE'S
CASE DOESN'T CHANGE A BIT, BASED
UPON THE DNA EVIDENCE.
WE HAVE THE VICTIM'S BLOOD ON
THE DEFENDANT.
NEVER HAS BEEN DISPUTED.
IT WAS NEVER DISPUTED UNTIL THIS
MONTH.
>> WAS IT TEST --
>> MATCHED UP AB-O GROUP.
>> AND ON THE CLOTHING.
>> YES, MA'AM.
THAT WAS TESTED TO THE EXTENT OF
1984 TECHNOLOGY.
NO QUESTION ABOUT THAT.
HE'S ALWAYS SAID -- I MEAN, HE
SAID, HE GOT THE VICTIM'S BLOOD
ON HIM AND WHEN HE PICKED HER UP
AND CRADLED HER HEAD AND CRIED
OVER HER BODY WAS THE STORY HE
GAVE IN ONE OF HIS MULTIPLE
STATEMENTS, BUT THE BOTTOM LINE,
YOU HAVE AN ALIBI DEFENSE THAT
COLLAPSED.
YOU HAVE AN ATTEMPT BY JOHNSTON
TO POINT THE FINGER AT THIS
KEVIN WILLIAMS PERSON.
THAT COLLAPSED.
YOU HAVE JOHNSTON TAKING ITEMS
FROM -- RATHER, LET ME BACK UP.
TAKE PILLOW CASE OUT OF THE
VICTIM'S HOUSE AND GATHERING UP
A BUNCH OF ITEMS AND TAKE THEM
NEXT-DOOR AND HIDING THEM AT THE
DEMOLITION SITE NEXT-DOOR WHERE
HE WAS WORKING CLAIMING HE TOOK
THEM AS A MEMENTO OF THE VICTIM.
>> I UNDERSTAND AND YOU ALSO
HAVE A DEFENDANT WHO WAS THE ONE
THAT CALLED THE POLICE AND SAID,
YOU KNOW, CRYING, SOMEBODY
KILLED MY GRANDMA.
SO IT'S NOT LIKE HE -- I MEAN,
COMMITTED THE CRIME AND THEN
TRIED TO HIDE.
HE, I MEAN -- HE CALLED THE
POLICE.
NOW --
>> GAVE THEM A FAKE NAME WHEN HE
DID, TOO.
>> WHAT.
>> GAVE A FALSE NAME WHEN HE
DID.
>> I MEAN, THE HOME -- MAYBE THE
MURDERER IS EXPLAINED BY
SOMEBODY WHO IS MENTALLY ILL, I
MEAN, IT IS A VERY -- SEEMS LIKE
A VERY BIZARRE SET OF
CIRCUMSTANCES.
NOT THAT WE DON'T SEE THIS.
>> FORTUNATELY WE DON'T HAVE TO
-- THEY ARE NOT RATIONAL -- THEY
ARE FREQUENTLY NOT RATIONAL
ACTS.
BUT, LET ME -- SINCE YOU MENTION
THE MENTAL ILLNESS, LET ME --
>> THERE IS NO MENTAL
MITIGATION, IN THE CASE.
>> NO, THAT WAS AN ISSUE IN THE
'90S, THE 1991, 5850, AND '91,
'92, BEFORE I HAD THE CASE, AND
LET ME MENTION AND TOUCH ON THAT
A BIT.
WE ARE SEEING FOR THE FIRST TIME
AND I'M NOT TAKING A SHOT AT
MR. DOSS HE'S DOING A GOOD JOB
AND DOING THIS BEST HE CAN WITH
WHAT HE'S GOT AND THE FACT HE'D
DEFEND THE CASE IN
POSTCONVICTION DIFFERENTLY FROM
THE WAY IT HAS BEEN DONE BEFORE
IS NOT THE STANDARD, NOT WHAT WE
ARE HERE ABOUT.
WE ARE HERE ABOUT AND TO THE
EXTENT WE ARE TALKING ABOUT A
MENTAL ILLNESS CLAIM THAT, CLAIM
HAS NEVER, EVER BEEN RAISED TO
CHALLENGE MR. JOHNSTON'S
STATEMENTS UNTIL NOW.
AND THAT COMPONENT OF IT IS
PROCEDURAL BARRED, JUST LIKE ANY
OF THE OTHER TESTING ISSUES, THE
NON- DNA TESTING IS WHAT I
CALLED IT THAT IS BARRED AND
COULD HAVE BEEN DONE A LONG,
LONG, LONG TIME AGO.
AND IT WASN'T.
I DON'T KNOW WHY AND IT DOESN'T
MATTER, BECAUSE THAT IS A
PROCEDURAL BAR.
AS FAR AS THE DNA TESTING, THERE
IS NO TIME LIMIT ON IT.
BUT, THAT RULE AND THAT -- THE
STATUTE UNDERPINNING THE RULE,
WERE NEVER INTENDED TO BE A ONE
FREE STAY OF EXECUTION RULE.
I WOULD SUGGEST TO THE COURT
THAT THE TIMING OF ALL OF THAT
IS HIGHLY, HIGHLY SUSPECT.
AND I DON'T MEAN THAT IN A
DISPARAGING FASHION.
>> SPEAKING OF TIMING, HOW DO
YOU SEE THE TIMELINE FROM THE
ENACTMENT OF THE STATUTE AND THE
RULE AND HOW IT CORRESPONDS WITH
WHEN COUNSEL WAS APPOINTED AND
REPRESENTING THE GENTLEMAN, AND
WHEN THEY HAD WITHDRAWN OR FILED
MOTIONS TO WITHDRAW?
WHAT IS THE TIMELINE AND WHAT
WOULD THAT SHOW US.
>> WE ARE NOT THAT LATE, JUSTICE
LEWIS, WE ARE IN THE EARLY '90s
WHEN IT COULD HAVE BEEN DONE.
>> THE RULE WAS NOT IN THE EARLY
'90s, I'M ASKING ABOUT THE RULE,
IF YOU ADDRESS THAT, THE STATUTE
THERAPY RULE.
>> HE HAD THE OPPORTUNITY
POST-RULE TO MAKE THE MOTION HAD
HE CHOSEN TO DO SO AND WE --
>> I AGREE AND AGAIN, WOULD YOU
DEGREES WHEN HE HAD A LAWYER AND
WHEN HE DIDN'T?
>> HELP ME OUT OF WHEN THE RULE
TOOK EFFECT, JUSTICE LEWIS AND
I'LL HAVE TO...
>> THE RULE TOOK EFFECT,
PROBABLY, IN THE -- AROUND 2002,
I GUESS.
2, 4...
>> AMENDED IN 2006 AND 2007 TO
REMOVE THE TIME LIMITATIONS.
>> HE HAD A LAWYER, IN THE STATE
-- I'M SORRY.
THE FEDERAL HABEAS PROCEEDING
WHICH WAS LATE '90s AND WAS
REPRESENTED, STILL, BY THAT
ATTORNEY, I BELIEVE, UP UNTIL --
I AM HAVING TROUBLE REMEMBERING
ALL OF THE DATES.
I KNOW MR. MILLS CAME INTO IT,
AROUND 2003, OR 2004.
AND I KNOW THAT IS WHEN
MR. MILLS CAME IN, RIGHT WHEN
THE CASE WAS SENT BACK FOR...
>> MENTAL RETARDATION.
>> LET ME SEE IF I HAVE ANOTHER
TIMELINE TO HELP ME OUT HERE.
>> ISN'T IT THE CASE, THAT WE
HAVE TO LOOK AT THIS, AND
EVALUATE THIS, JUST LIKE WE
WOULD EVALUATE IT, IF HE HAD
RAISED IT, FIVE YEARS AGO.
OR SIX YEARS AGO.
OR, RIGHT AFTER THE RULE WAS
ADOPTED.
BECAUSE, IN ITS CURRENT
INCARNATION, THIS RULE HAS NO
TIME LIMIT.
THERE IS NO BAR IN THE RULES TO
BRINGING THIS UP AT THE 11th
HOUR.
>> THAT'S TRUE, IT'S NOT AND LET
ME -- FOUND THE TIMELINE AND GOT
MY CHEAT SHEET HERE.
HE WAS IN THE COURT IN 2000 ON A
PETITION FOR WRIT OF HABEAS
CORPUS, IN STATE CIRCUIT COURT
IN 2002, ON A 3.851 MOTION, AND
CAME OUT OF THIS COURT MAY THE
4TH OF 2006 WITH AN AFFIRMANCE,
AND YES.
HE HAD COUNSEL THAT WAS ACTIVELY
LITIGATING THAT CASE AND JUSTICE
LEWIS I APOLOGIZE FOR BEING SO
LOW TO GET TO THAT ANSWER FOR
YOU, TOO MANY DATES.
>> ONE LAST QUESTION.
IT SEEMS TO ME IN READING THIS
RECORD, THAT THE... STRUGGLE,
SEEMS TO ME SHE PROBABLY
SCRATCHED HIS FACE AND SEEMS TO
ME THE DNA... PROBABLY IS
UNDERNEATH HER NAIL.
THE NAIL CLIPPINGS, THAT ARE NOW
AT THE ORLANDO POLICE
DEPARTMENT.
WHY NOT JUST TEST IT AND WE'LL
BE SURE?
>> BECAUSE I DON'T MEAN, I DON'T
-- I MEAN NO DISRESPECT.
I REALLY DON'T...
>> [INAUDIBLE].
>> [LAUGHTER].
>> IT IS TOO EARLY FOR THAT,
STILL, BUT THE STANDARD IS NOT
WHAT DOES IT HURT.
THE STANDARD IS, IS THERE A
REASONABLE PROBABILITY OF A
DIFFERENT RESULT?
AND, UNDER THESE FACTS, WITH
THIS EVIDENCE, UNDER THE LEGAL
STANDARD --
>> YOU DON'T THINK A JURY OF 12
PEOPLE, IF THEY HEARD THAT THE
DNA, YOU KNOW, THE BLOOD
UNDERNEATH THE VICTIM'S NAILS,
BELONGED TO SOMEONE ELSE, THAT
THAT WOULD NOT RAISE THE ISSUE
WITH THEM.
>> NO, NOT AGAINST THE REST OF
THE FACTS.
NOT AGAINST THE REST OF THE
FACTS AND NOT AGAINST
MR. JOHNSTON'S PREEMPTIVE FAILED
EXPLANATION FOR THOSE FACTS,
WHICH COULD BE TURNED AROUND AND
ARGUED AS... GUILT YOU HAVE
SUBSTANTIAL OTHER EVIDENCE
WITHOUT THE SCRATCHES ON HIS
FACE, AND HE'S THIS ONE THAT
KILLED THE POOR LADY.
I WOULD SUGGEST THE LOWER COURT
SHOULD BE AFFIRMED IN ALL
RESPECTS, AND ANY STAY OF
EXECUTION SHOULD BE DENIED.
IT IS TIME FOR THE SENTENCE TO
BE CARRIED OUT.
>> THANK YOU, MR. NUNNELLEY,
MR. DOSS.
>> I'D LIKE TO FIRST TAKE ISSUE
WITH THE STATEMENT THAT THE
FINGERNAIL SCRAPINGS, WHETHER OR
NOT THERE IS ANYBODY ELSE'S
FLESH OR BLOOD IS ON THAT, FLIES
IN THE FACE OF THE OTHER
EVIDENCE, YOU CAN LOOK BACK TO
THE CLOSING ARGUMENT, THE
PROSECUTOR ARGUING THERE IS NO
EVIDENCE THAT ANYBODY ELSE WAS
IN THE APARTMENT DAVID
EUGENE JOHNSTON AND I WOULD ASK
YOU TO RETURN A VERDICT THAT
SPEAKS THE TRUTH BECAUSE THAT IS
WHAT A TRIAL IS, THAT IS 989.
AS WELL, THE PROSECUTOR ARGUED,
THAT HAPPENED DURING A VIOLENT
STRUGGLE.
THAT HAPPENED WHEN MARY HAMMOND
WAS FIGHTING FOR HER LIFE, WHEN
MARY HAMMOND WAS FIGHTING FOR
HER LIFE, THAT HAPPENED WHEN
MARY HAMMOND WAS SCRATCHING AND
CLAWING AT DAVID EUGENE JOHNSTON
WHEN SHE SCRATCHED HIS FACE AND
NEXT AND RIPPED THE CHAIN FROM
HIS NECK AND THEN IT LODGED IN
HER HAIR AND IT FLIES IN THE
FACE OF WHAT IS ARGUED HERE
TODAY.
THAT IT DOESN'T MATTER.
IT ABSOLUTELY MATTERS AND EACH
ONE -- EACH ONE OF THE ITEMS OF
EVIDENCE THAT HAS BEEN SUGGESTED
TO YOU THAT CONTINUED DISTRICTS
WHETHER OR NOT SOMEONE ELSE WAS
THERE, I DON'T SEE THE RELEVANCE
OF IT.
IT PALES IN COMPARISON TO THE
DNA OF SOMEONE ELSE, THE PUPPY,
AS WAS ARGUED IS SOMETHING THAT
WAS CONVENIENTLY CONJURED UP AND
MR. MARTIN SAID MR. JOHNSTON HAD
A PUPPY AND THERE IS AN ISSUE AS
TO WHETHER OR NOT IT WOULD
SCRATCH AND I URGE THE COURT TO
TAKE A LOOK.
I HAVE DETAILED IN FOOTNOTE 3,
REGARDING THE BUTTERFLY
NECKLACE, THAT, YES, PATRICIA
MANN INITIALLY STATED SHE HAD
SEEN HIM WEARING THE NECKLACE AT
572 AND LATER ADMITTED WHAT SHE
ACTUALLY SAW WAS THE
HEART-SHAPED PENDANT ON 577.
WHICH WAS ALSO CONFIRMED BY
MARTIN AT 713, A HEART-SHAPED
PEN DAN AND THERE IS ABSOLUTELY
DOUBT, MUCH MORE THAN WHAT THE
STATE WOULD LIKE TO ADMIT.
AS TO THE COURT QUESTIONS
REGARDING TIMING, ONCE THE
MENTAL RETARDATION CLAIM WAS
DENIED BY THE COURT IN 2006 AND
MAY, 2006, MR. MILLS, THEN MOVED
TO WITHDRAW.
HE WITHDREW AND MR. SOLIS WAS
APPOINTED.
AND MR. SOLIS NEVER TOOK TO IT
FEDERAL COURT AND NEVER
PROCEEDED ANYWHERE ELSE AND
ASKED TO WITHDRAW.
>> [INAUDIBLE].
>> I'M -- I COULDN'T --
>> DO YOU KNOW WHY WE ASKED TO
WITHDRAW.
>> HE SAYS THERE WERE NO OTHER
ISSUES, WHICH, WHICH MEANT HE
DIDN'T TAKE IT INTO FEDERAL
HABEAS COURT AND DIDN'T TAKE IT
ANYWHERE AND THAT LANGUAGE, FOR
A WHILE, HE WAS ALLOWED TO
WITHDRAW.
CCRC MENTAL WAS APPOINTED TO THE
CASE.
THEY MADE THEIR MOTION, IT
LANGUISHED.
UNTIL THE DEBT WARRANTED WAS
SIGNED AND JUDGE WADDLES
APPOINTED ME AND MR. JOHNSTON
HAS EFFECTIVELY BEEN WITHOUT
COUNSEL IN MY ESTIMATION SINCE
MAY OF 2006 WHICH IS A PERIOD OF
THREE YEARS, WHICH IS TIME
PERIOD WITHIN WHICH THE TIME BAR
WAS LIFTED, ON OUR RULE OF
CRIMINAL PROCEDURE 3.853 AND MY
RECOLLECTION OF THE AMENDMENT,
LIFTING THE TIME BAR IS 2006 AS
THE JUSTICE SUGGESTED AND WHEN
WE LOOK AT THAT AND WE CONSIDER
THIS CASE, THAT IT CRIES OUT FOR
THE DNA TESTING, AND THIS COURT
REVERSE AND SEND BACK TO THE
TRIAL COURT SO THE TESTING CAN
BE CONDUCTED.
APPRECIATE YOUR TIME.
>> THANK YOU, MR. DOS S AND
THANK YOU MORE NUNNELLEY, AND
THE COURT WILL TAKE ITS MORNING
RECESS FOR FIVE MINUTES.
>> PLEASE RISE.
Friday, May 22, 2009
Florida Executions
Florida Executions 05/20/09 - 03:08 PM
The Florida Supreme Court has heard appeals from two convicted killers whose death warrants have already been signed by Gov. Charlie Crist.
John Richard Marek was scheduled to be put to death last week, but the justices stayed his execution after his attorney asked for a postponement to address new evidence in the case.
Marek was sentenced to death for the June, 1983 kidnapping, rape and murder of Adella Marie Simmons in Broward County.
Simmons was one of two women returning home when their car broke down on the Florida Turnpike. Marek and his accomplice, Raymond Wigley, stopped and persuaded Simmons to ride with them to a service station.
They instead took her to a beach about 60 miles away where she was strangled with a bandanna after being sexually assaulted.
Marek was sentenced to death, but Wigley got life in prison.
Marek’s attorney, Martin McClain, made two points before the Supreme Court today, including the argument that Marek’s death sentence should be reduced because his accomplice received a life term.
McClain also contends there was inappropriate communication between the judge in Marek’s case and the state.
The other case heard today focused on David Johnston. He is scheduled to be executed May 27th after being convicted of stabbing and strangling 84-year-old Mary Hammond at her home in Orlando.
Johnston’s lawyer argues the execution should be delayed to perform DNA testing that could exonerate him.
Ron McAndrew: Florida must abolish flawed death penalty
Ron McAndrew: Florida must abolish flawed death penalty
http://www.orlandosentinel.com/news/opinion/edp-ron-mcandrew-death-penalty-052209,0,3152848.story
http://www.orlandosentinel.com/news/opinion/edp-ron-mcandrew-death-penalty-052209,0,3152848.story
By Ron McAndrew Special to the Sentinel
Ron McAndrew
"Capital punishment: them without the capital get the punishment." Those were the last words of John Spenkelink, executed 30 years ago today in Starke on May 25, 1979 for murdering traveling companion Joseph Szymankiewicz. Spenkelink was the first person executed in the state, the second nationwide after a 1976 U.S. Supreme Court ruling reinstated capital punishment.
As a former Florida prison warden who carried out three electric-chair executions and shadowed five lethal-injection executions in Texas, I know that Spenkelink was correct: Most death-row inmates cannot afford experienced attorneys.
Once, I firmly supported capital punishment. Part of my job was to help strap prisoners into the electric chair, and signal the anonymous, hooded executioner to administer the current. But each execution lessened my support. In Texas, I thought the more "civilized" executions by lethal injection would remove my repugnance. They didn't.My change of heart was gradual and painful. At night I would awaken to visions of executed inmates sitting on the edge of my bed.
I began studying capital-punishment history, searching the Internet for the reasons behind executions over the centuries. I was appalled to think I had been part of this ceremonial barbaric act committed to appease chest-pounding politicians attempting to appear "tough on crime."
I began studying capital-punishment history, searching the Internet for the reasons behind executions over the centuries. I was appalled to think I had been part of this ceremonial barbaric act committed to appease chest-pounding politicians attempting to appear "tough on crime."
An experience I had this January underscored my transformation. I was a speaker at the National Coalition to Abolish the Death Penalty's conference in Pennsylvania. In the conference venue one day, a man turned to me as I approached. Shockingly, I saw two men talking. One of them turned as I approached. With a shock I realized the last time I saw this gentle soul was inside a Florida death-row prison cell; I was his warden.
We embraced. My heart was overwhelmed. It was Juan Melendez, an exoneree who had spent 17 years, eight months and one day on death row for a crime he didn't commit. As his warden, I could have taken this innocent man from his cell into the death chamber.
Melendez's case is typical for many on death row. Substandard representation and prosecutorial misconduct are among the reasons for exonerations over the years -- 133 men and women since 1973. Three men were exonerated this year. Florida leads the nation in exonerations since 1973 with 22.
Race is a factor in death sentences. According to the NAACP Legal Defense and Educational Fund report "Death Row U.S.A. Winter 2009," 41.58 percent of death-row inmates nationally are African-American, although they comprise 13.5 percent of the U.S. The percentage is similar in Florida. Florida's population is 14.6 percent African-American but 35 percent of its death row. Eighty percent of death-row inmates of color nationally were sentenced for killing white victims.
Since the Spenkelink execution, research revealed how capital punishment drains states' financial resources that could otherwise fund better law enforcement, crime-prevention programs, counseling and other support for murder victims' families, and reinvestigations of unsolved homicides. The cost issue figured prominently in several states' repeal bills this year, including New Mexico's, which abolished capital punishment in March. Florida executed 67 death-row inmates between 1976 and 2008 at approximately $24 million per execution.
In 30 years, Americans began realizing that capital punishment doesn't deter homicides. Florida, with 402 death-row inmates -- the second-largest death-row-inmate population nationally after California's -- has one of the highest murder rates nationally. The rate is 6.6 people per capita, or per 100,000 people, more than the average national murder rate of 5.5 people per capita and higher than the murder rate in states without the death penalty, 3.1 people per capita.
The lesson that I, and all of us, should learn post-Spenkelink is that capital punishment does not ensure public safety, and has no safeguards against wrongful executions. The 35 death-penalty states, Florida included, should abolish it, replace it with life without parole, and apply the savings where they would do the most good -- helping homicide victims' survivors and funding effective law enforcement that protects our communities.
Ron McAndrew spent 25 years in Florida corrections before retiring, working his way up from an entry-level corrections officer to a warden in the Florida State Penitentiary. He also served as the interim director of the Orange County jail in Orlando.
The replybrief in David Johnston
http://david-johnston.us/legal/replybriefjohnston.htm
http://david-johnston.us/legal/Filed_05-15-2009_Reply_Brief.pdf
IN THE SUPREME COURT OF FLORIDA
CASE NO. SC09-839
DAVID EUGENE JOHNSTON,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
ON APPEAL FROM THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT,IN AND FOR ORANGE COUNTY, STATE OF FLORIDA
REPLY BRIEF OF APPELLANT
D. Todd Doss Florida Bar No. 0910384 725 Southeast Baya DriveSuite 102 Lake City, FL 32025
(386) 755-9119
COUNSEL FOR APPELLANT
TABLE OF CONTENTS
Table of Contents ........................................................... i Table of Authorities .......................................................... ii Argument I THE TRIAL COURT ERRED IN DENYING MR. JOHNSTON’S
........................................................... 1 RULE 3.853 MOTION FOR POSTCONVICTION DNA TESTING ARGUMENT II
NEWLY DISCOVERED EVIDENCE HAS REVEALED THAT MR.
JOHNSTON WAS CONVICTED BASED UPON INFIRM FORENSIC EVIDENCE IN VIOLATION OF THE FIFTH, EIGHTH, ANDFOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION
........................................................... 4
ARGUMENT III
THE TRIAL COURT ERRED IN DENYING MR. JOHNSTON’S REQUEST FORFORENSIC TESTING RESULTING IN A VIOLATION OF MR. JOHNSTON’S RIGHTS TO DUE PROCESS UNDER BOTH THE U.S. AND FLORIDA CONSTITUTIONS
........................................................... 6
ARGUMENT IV
THE CLEMENCY PROCESS AND THE MANNER IN WHICH IT WAS DETERMINED THAT MR. JOHNSTON SHOULD RECEIVE A DEATH WARRANT ON APRIL 20, 2009, WAS ARBITRARY AND CAPRICIOUSAND IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS
.......................................................... 11
i
ARGUMENT VI BECAUSE OF THE INORDINATE LENGTH OF TIME THAT MR. JOHNSTON HAS SPENT ON DEATH ROW, ADDING HIS EXECUTIONTO THAT PUNISHMENT WOULD CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION, ANDBINDING NORMS OF INTERNATIONAL LAW .......................................................... 12 CONCLUSION .......................................................... 12 CERTIFICATE OF SERVICE .......................................................... 13 CERTIFICATE OF FONT .......................................................... 13
TABLE OF AUTHORITIES
Guzman v. State, 868 So.2d 498 (Fla. 2003)................. 4
Harbison v. Bell, – U.S. – (April 1, 2009) ............... 11
Marek v. State, - Fla. S.Ct. - ........................ 11-12
Osborne v. District Attorney’s Office, 521 F.3d 1118(9th Cir. 2008), cert.granted, (currently pending)District Attorney’s Office v. Osborne (U.S. Sup. Ct.,Case No. 08-6) ........................................ 10-11
Trepal v. State, 846 So.2d, 405 (Fla. 2003) ............. 4-5
PROCEDURAL RULES
Fla. R. Crim. P. 3.853 .................................. 2-4
STATUTES
Sec. 27.51(5)(a), Fla. Stat. ............................. 11
ii
Sec. 27.511(9), Fla. Stat. ............................... 12
Sec. 27.5303(4), Fla. Stat. .............................. 12
TREATISES, ARTICLES and GUIDELINES
Strengthening Forensic Science in the United States: A Path Forward (free Executive Summary)
http://www.nap.edu/catalog/12589.html,last viewed May 5, 2009 ................................. 5-6
Office of the Inspector General, U.S. Dept. Of Justice,
The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosive-Related and Other Cases (1997) ................................... 4-5
iii
ARGUMENT IN REPLY
ARGUMENT I
THE TRIAL COURT ERRED IN DENYING MR. JOHNSTON’S RULE
3.853 MOTION FOR POSTCONVICTION DNA TESTING.
The State begins by reciting the circuit court’s order denying Mr. Johnston’s claim. The State then reiterates that Mr. Johnston had scratches on his face and neck immediately after the victim’s body was found, that they were not present prior to the murder, and that they were not caused by Mr. Johnston’s puppy (Answer at 5, fn 2). The logical conclusion to be drawn from the State’s argument is that the scratches on Mr. Johnston had to have come from the victim.1 By the State’s own argument, it would seem that DNA testing is appropriate here. If the DNA evidence under the victim’s fingernails does not match Mr. Johnston, then he did not commit the murder.
The State proceeds to assert that Mr. Johnston is suggesting that the evidence against him be re-assessed and that Mr. Johnston is arguing for a complete review of the sufficiency of the evidence (Answer at 6). Contrary to the State’s version of Mr. Johnston’s argument, Mr. Johnston presented facts to establish that favorable DNA results would exonerate him from the
1In fact, during Mr. Johnston’s trial, the prosecutorasserted that there was a violent struggle, during which thevictim scratched Mr. Johnston’s face and neck (T. 986).
-1-
crime.2 This was his burden under Fla. R. Crim. P. 3.853. Mr.
Johnston has met this burden, and the State has done nothing to
show otherwise.3
The State also claims that Mr. Johnston’s 3.853 motion does
not explain how DNA testing could prove his innocence (Answer at
8). The State is mistaken. As Mr. Johnston explained in his
3.853 motion, the State linked Mr. Johnston’s scratches on his
face and neck, as well as the blood on his clothes and shoes, to
the murder. Investigator Dupuis testified as to these stains and
how the blood spatter projected from the victim to Mr. Johnston.
In a case in which there were no eyewitnesses, no fingerprint
evidence, no hair evidence and no confession, the absence of the
victim’s blood on Mr. Johnston, as well as the absence of Mr.
2Moreover, the State ignores the point that Mr. Johnston ismaking: that he is mentally ill, that he has made manyinconsistent statements, and that the circuit court cherry-pickedonly those statements that were beneficial to denying this issue.
3The State’s claim that witnesses confirmed Mr. Johnston’s ownership of the butterfly necklace and the watch (Answer at 7,fn 5), is misleading. While Patricia Mann initially stated thatshe had seen Mr. Johnston wearing this necklace at the 7-ElevenStore prior to the murder (T. 572), she later admitted that whatshe actually saw around his neck was a heart-shaped necklace (T.577). The fact that Mr. Johnston was wearing a heart-shapednecklace that evening was later confirmed by the testimony ofFarron Martin who stated that Mr. Johnston was wearing a heart-shaped pendant when he left the apartment at 1:00 A.M. (T. 713).
Additionally, Officer Candeleria testified that heencountered Mr. Johnston earlier that morning at a bar and thathe noticed the watch Mr. Johnston was wearing (T. 531). Officer Candeleria subsequently testified at trial that the watch foundat the scene appeared to be the same watch he saw Mr. Johnstonwearing earlier at the bar (T. 531).
-2-
Johnston’s DNA under the victim’s fingernails, would surely result in an exoneration.
In asserting that this case does not present a factual scenario where DNA testing could provide any benefit, the State in an accompanying footnote seemingly relies on the fact that no testing was conducted at the 1984 trial on the fingernail scrapings because of the impossibility of obtaining meaningful results (Answer at 9, fn 6). The State cannot possibly believe that science hasn’t advanced in the last 25 years to allow for such testing today. Even the most casual observer would likely recognize that minute quantities of blood are sufficient for DNA testing.4
As a final point, while conceding that Mr. Johnston’s 3.853 motion is "technically permissible" (Answer at 11), the State nevertheless disparages Mr. Johnston for pursuing an avenue to which he is entitled ("Johnston’s motion is no more than a blatant and frivolous attempt to delay his execution" (Answer at 11). Perhaps the State’s need to resort to such tactics is its way of attempting to avoid the fact that Mr. Johnston has satisfied the requirements of Rule 3.853 and is therefore
4Forensic serologist Keith Paul testified at trial thatthere appeared to be minute quantities of blood on submittedfingernails, but he conducted no tests because the amount wasinsufficient for testing purposes (T. 879).
-3-
entitled to DNA testing.5 Mr. Johnston submits that this case should be remanded to the circuit court for DNA testing in accordance with Fla. R. Crim. P. 3.853.
ARGUMENT II
NEWLY DISCOVERED EVIDENCE HAS REVEALED THAT MR. JOHNSTON WAS CONVICTED BASED UPON INFIRM FORENSIC EVIDENCE IN VIOLATION OF THE FIFTH, EIGHTH, ANDFOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION.
This Court has recognized that "reports" issued by governmental or other bodies that affect the integrity of a defendant’s trial or penalty phase can constitute newly discovered evidence. See, Trepal v. State, 846 So.2d, 405, 409410 (Fla. 2003)(relinquishing jurisdiction for defendant to file a new successive motion to vacate judgment and sentence based on the newly discovered information in the report released by Office of the Inspector General, U.S. Dept. Of Justice, The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosive-Related and Other Cases (1997); receded from on other grounds, Guzman v. State, 868 So.2d 498 (Fla. 2003). The State takes issue with that fact and argues that "To the extent that further discussion is necessary, reports similar in character to this one have not been considered to be
5Undersigned counsel was appointed to this case less thanthree weeks ago. He reviewed the case and raised what he considered to be viable issues. Undersigned counsel raised theseissues in good faith, and any insinuation by the State to thecontrary is both uncalled for and untrue.
-4-
newly discovered evidence. Trepal v. State, 846 So.2d 405(Fla. 2003). FN8 The report in Trepal contained information that actually concerned the case before the court. Trepal, 846 So.2d at 409. That is certainly not the case here." (Answer at 14).
The State is mistaken as to what Trepal involved and its implications. The relevant issue argued in Trepal, as it relates to the case at bar, concerned the investigation into fraud at the FBI Laboratory and specifically the reported findings. See, Office of the Inspector General, U.S. Dep’t of Justice, The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosive-Related and Other Cases (1997). Trepal’s case was one of those investigated and this Court remanded his case while on appeal to allow Trepal to file a postconviction motion in the circuit court to address the relevant claims. A full evidentiary hearing was held on Trepal’s motion. Although Trepal’s claim was ultimately denied, Trepal, 846 So.2d at 409, this Court did not hold that the report was not newly discovered evidence as implied by the State in its argument. Significantly, as noted above, this Court remanded for an evidentiary hearing on the matters in the report that related to Trepal. The same should be done in Mr. Johnston’s case with regard to the type of testing that was conducted and thereafter questioned in the National Academy of Sciences report, Strengthening Forensic Science in the United State: A Path
-5-
Forward, http://www.nap.edu/catalog/12589.html, Prepublication Copy.
ARGUMENT III
THE TRIAL COURT ERRED IN DENYING MR. JOHNSTON’S REQUEST
FOR FORENSIC TESTING RESULTING IN A VIOLATION OF MR.
JOHNSTON’S RIGHTS TO DUE PROCESS UNDER BOTH THE U.S.
AND FLORIDA CONSTITUTIONS.
The circuit court and the State have both misapprehended the value of the forensic testing requested by Mr. Johnston. The State quotes and champions the circuit court’s finding that "there is no reasonable probability that the results of additional forensic testing would exonerate Mr. Johnston of the crime (Answer at 16). In doing so, the State ignores the fact that other than the aforementioned conclusory statement, the circuit court provides no rationale for the basis of its denial.
A review of the record reveals just how important the forensic evidence was to the State’s case. The State’s closing argument, for example, belies the State’s current claim that the forensic evidence and any testing of it would not have any bearing on Mr. Johnston’s case, much less tend to exonerate him:
Now, Mr. Wolfe mentioned to you that much of theState’s case is based on circumstantial evidence. I would agree that a good deal of the State’s caseis based on circumstantial evidence.
(T. 958). * * *
-6-
When Mr. Wolfe has talked to you a little bit
about the officers who got to the scene and that Mr.
Johnston was there, from listening to Mr. Wolfe’s
argument, I suspect that he wants you to believe that
at that time the officers decided that David Johnston
was there, that he had made a few minor contradictions
in his statements and that they decided to arrest him.
Well, I would ask you to carefully consider the
evidence and what the officers knew when they got
there. When the officers first arrived on scene they
didn’t have any reason to suspect David Johnston.
He was the person that called the 911 number and
reported it at that point in time. They didn’t have any
reason to look at him and think that he was the
suspect.
It was the physical evidence they found at the
scene and the stories that Mr. Johnston had told them
that aroused their suspicions at that time and what did
Mr. Johnston do?
(T. 959).
* * *
Now, what else did the officers notice at thescene?
The officers also noticed some scratch marks on
Mr. Johnston’s face. They asked him if he had been in
any arguments or anything earlier in the evening and he
hadn’t and that was some good hard evidence the officer
saw at the scene that aroused their suspicions about
Mr. Johnston.
(T. 960-61).
* * *
What else did the officers know before they madethe arrest?
The officers had investigated the outside of the
scene and they found some footprints outside by the
front kitchen window. That was another piece of
evidence that they had.
-7-
They compared that with the shoes of Mr. Johnstonat that point in time and the treadwear on his shoesseemed to match the footprints they saw outside thewindow which would lead the officers to believe that David Eugene Johnston broke the front window to MaryHammond’s apartment and Mr. Johnston in his initialstatements to the police never mentioned him standingaround that front window to the apartment.6
(T. 962).
* * *
Mr. Wolfe wants you to believe that whoever thereal murderer is, their fingerprints are on the cokecan but no where (sic) else in the apartment.
If you will remember the testimony of OfficerHietchew, the fingerprints are not always left whensomeone touches an object.
All right. Fingerprints are sometimes left. Thereare certain factors that come into consideration. The fingerprints last for periods of time.
It’s just as consistent that whoever bought thatcoke can, if Miss Hammond bought it at the grocerystore and a bagboy touched it and put it in her car.It’s just as consistent as being the real murderers.
There is no way of knowing who those fingerprints
6 Mr. Johnston has requested testing and examination ofthese footprints. Plaster casts are still in evidence at theOrlando Police Department.
Interestingly, the State also had Terrel Kingery testifyregarding pattern evidence relating to Mr. Johnston’s shoes (T.740-52). He received plaster casts, a pair of shoes, andphotographs of shoe tracks, among other things (T. 742).Subsequently, he compared the prints and expressed the opinionthat Mr. Johnston’s left shoe could have made the print (T. 745).Kingery described the process he utilized as inking the shoes,putting the shoes on his feet (not the same size as Mr. Johnston)and then personally making the prints. He admitted the shoes had already been tested for blood and that he did not use the samesoil as that at the crime scene.
-8-
belong to.7
(T. 982).
* * *
That happened during a violent struggle. Thathappened when Mary Hammond was fighting for her life.That happened when Mary Hammond was fighting for herlife. That happened when Mary Hammond was scratchingand clawing at David Eugene Johnston when she scratchedhis face and his neck and she ripped that chain fromhis neck and then it lodged in her hair.8
(T. 986)(emphasis added).
* * *
There is no evidence that anybody else was in thatapartment except David Eugene Johnston and I would ask you to return a verdict that speaks the truth becausethat’s what a trial is.
(T. 989)(emphasis added).
For the State to now advance and persist in its argument
that somehow the forensic evidence is irrelevant to this case is
baseless and without merit. At trial, the State relied
extensively upon the forensic evidence to establish that Mr.
Johnston was the one and only assailant of Mary Hammond and to
7 Gene Hietchew testified that fourteen latent prints hadbeen lifted at the crime scene of which four were usable (T.681). The prints did not match Mary Hammond, Kevin Williams, orDavid Johnston (T. 682). However, the police failed to comparethe prints of Jose Gutierrez who had been observed within hoursof the crime sitting in the driveway looking as if he werespoiling for a fight. Mr. Johnston has requested the opportunityto compare those fingerprints.
8 The fingernail clippings containing flesh and blood arestill in the possession of Orlando Police Department.
-9-
disprove his assertion that she had already been attacked prior to his arrival.
In Mr. Johnston’s case the value of the testing is heightened by the State’s reliance on the contradictions in his statements, Mr. Johnston’s profound mental illness, brain damage and the fact he operates at a mental age of 6.6 years to 11.8 years.9 Mentally challenged individuals such as Mr. Johnston often have difficulty remembering events and/or recounting them accurately. This inability heightens the risk of wrongful conviction and the need for forensic testing. When considered in conjunction with the newly discovered evidence claim that the testing procedures used in capital cases such as Mr. Johnston’s have been exposed as oftentimes fraught with error, it becomes glaringly apparent that Mr. Johnston’s case requires an independent forensic review of the evidence by his own forensic experts.
Additional testing of the evidence listed above is critical to Mr. Johnston’s claim of innocence, and would in no way harm the State. It would be a violation of due process for Mr. Johnston to be denied access to independent forensic testing in this case. See Osborne v. District Attorney’s Office, 521 F.3d 1118 (9th Cir. 2008), cert.granted, (currently pending) District
9 A neuropsychological evaluation conducted on May 5, 2009revealed the mental age cited.
-10-
Attorney’s Office v. Osborne (U.S. Sup. Ct., Case No. 08-6). Clearly, the requested testing should be allowed and relief should issue.
ARGUMENT IV
THE CLEMENCY PROCESS AND THE MANNER IN WHICH IT WAS DETERMINED THAT MR. JOHNSTON SHOULD RECEIVE A DEATH WARRANT ON APRIL 20, 2009, WAS ARBITRARY AND CAPRICIOUSAND IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS.
In opposing this claim, the State relies on the fact that Mr. Johnston had a clemency proceeding in 1987 (Answer at 19). The State fails to address Mr. Johnston’s argument that the process that occurred in 1987 before Mr. Johnston’s life history was fully developed cannot be the "fail safe" that is envisioned by the United States Supreme Court. See Harbison v. Bell, – U.S.
– (April 1, 2009).
The State also asserts that Mr. Johnston’s argument that collateral counsel was precluded from seeking clemency until Harbison was decided "makes no sense". (Answer at 20). Perhaps the State has somehow overlooked the fact that in Marek v. State, the State represented to this Court, "For the Court’s benefit, it should be noted, first that Mr. McClain has asserted he will not
have adequate time to properly litigate Marek‘s case, however, in
spite of the state statute barring CCRC and registry appointed
counsel from handling clemency, he will devote his time to the
preparation of a clemency application. See Sections 27.51(5)(a);
-11-
27.511(9); and 27.5303(4), Fla. Statutes." (Marek v. State, Case No. 09-765, April 30, 2009 Answer Brief at 45,)(emphasis added). Mr. Johnston submits that relief is warranted.
ARGUMENT VI
BECAUSE OF THE INORDINATE LENGTH OF TIME THAT MR. JOHNSTON HAS SPENT ON DEATH ROW, ADDING HIS EXECUTIONTO THAT PUNISHMENT WOULD CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ANDBINDING NORMS OF INTERNATIONAL LAW.
The State asserts with bold emphasis that Mr. Johnston "cannot now contend that his punishment has been illegally prolonged because the delay in carrying out his sentence is in large part due to his own actions in challenging his conviction and sentence." (Answer at 27-28)(emphasis in original). In making this statement, the State neglects to address the fact that Mr. Johnston has been eligible for execution since 1999, when his first round of postconviction appeals were exhausted in state and federal court.10 Thus, the delay in carrying out Mr. Johnston’s execution is not attributable to him.
CONCLUSION
Based upon the record and his arguments, Mr. Johnston respectfully urges the Court to reverse the lower court, order a
10The fact that successive postconviction motions do notprevent a warrant from being signed is evident from the case ofMarek v. State, where Marek had a pending successive 3.851 motionwhen the Governor signed his warrant on April 20, 2009.
-12- ___________________________
new trial and/or resentencing, impose a sentence of life imprisonment, and/or remand for an evidentiary hearing.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished by electronic transmission and U.S. Mail, postage prepaid, to Kenneth S. Nunnelley, Office of the Attorney General, 444 Seabreeze Blvd., 5th Floor, Daytona Beach, FL 32118 on May 15, 2009.
CERTIFICATE OF FONT
This is to certify that this Reply Brief has been produced in a 12 point Courier type, a font that is not proportionately spaced.
D. TODD DOSS Florida Bar No. 0910384 725 Southeast Baya DriveSuite 102 Lake City, FL 32025-6092Telephone (386) 755-9119Facsimile (386) 755-3181
-13-
http://david-johnston.us/legal/Filed_05-15-2009_Reply_Brief.pdf
IN THE SUPREME COURT OF FLORIDA
CASE NO. SC09-839
DAVID EUGENE JOHNSTON,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
ON APPEAL FROM THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT,IN AND FOR ORANGE COUNTY, STATE OF FLORIDA
REPLY BRIEF OF APPELLANT
D. Todd Doss Florida Bar No. 0910384 725 Southeast Baya DriveSuite 102 Lake City, FL 32025
(386) 755-9119
COUNSEL FOR APPELLANT
TABLE OF CONTENTS
Table of Contents ........................................................... i Table of Authorities .......................................................... ii Argument I THE TRIAL COURT ERRED IN DENYING MR. JOHNSTON’S
........................................................... 1 RULE 3.853 MOTION FOR POSTCONVICTION DNA TESTING ARGUMENT II
NEWLY DISCOVERED EVIDENCE HAS REVEALED THAT MR.
JOHNSTON WAS CONVICTED BASED UPON INFIRM FORENSIC EVIDENCE IN VIOLATION OF THE FIFTH, EIGHTH, ANDFOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION
........................................................... 4
ARGUMENT III
THE TRIAL COURT ERRED IN DENYING MR. JOHNSTON’S REQUEST FORFORENSIC TESTING RESULTING IN A VIOLATION OF MR. JOHNSTON’S RIGHTS TO DUE PROCESS UNDER BOTH THE U.S. AND FLORIDA CONSTITUTIONS
........................................................... 6
ARGUMENT IV
THE CLEMENCY PROCESS AND THE MANNER IN WHICH IT WAS DETERMINED THAT MR. JOHNSTON SHOULD RECEIVE A DEATH WARRANT ON APRIL 20, 2009, WAS ARBITRARY AND CAPRICIOUSAND IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS
.......................................................... 11
i
ARGUMENT VI BECAUSE OF THE INORDINATE LENGTH OF TIME THAT MR. JOHNSTON HAS SPENT ON DEATH ROW, ADDING HIS EXECUTIONTO THAT PUNISHMENT WOULD CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION, ANDBINDING NORMS OF INTERNATIONAL LAW .......................................................... 12 CONCLUSION .......................................................... 12 CERTIFICATE OF SERVICE .......................................................... 13 CERTIFICATE OF FONT .......................................................... 13
TABLE OF AUTHORITIES
Guzman v. State, 868 So.2d 498 (Fla. 2003)................. 4
Harbison v. Bell, – U.S. – (April 1, 2009) ............... 11
Marek v. State, - Fla. S.Ct. - ........................ 11-12
Osborne v. District Attorney’s Office, 521 F.3d 1118(9th Cir. 2008), cert.granted, (currently pending)District Attorney’s Office v. Osborne (U.S. Sup. Ct.,Case No. 08-6) ........................................ 10-11
Trepal v. State, 846 So.2d, 405 (Fla. 2003) ............. 4-5
PROCEDURAL RULES
Fla. R. Crim. P. 3.853 .................................. 2-4
STATUTES
Sec. 27.51(5)(a), Fla. Stat. ............................. 11
ii
Sec. 27.511(9), Fla. Stat. ............................... 12
Sec. 27.5303(4), Fla. Stat. .............................. 12
TREATISES, ARTICLES and GUIDELINES
Strengthening Forensic Science in the United States: A Path Forward (free Executive Summary)
http://www.nap.edu/catalog/12589.html,last viewed May 5, 2009 ................................. 5-6
Office of the Inspector General, U.S. Dept. Of Justice,
The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosive-Related and Other Cases (1997) ................................... 4-5
iii
ARGUMENT IN REPLY
ARGUMENT I
THE TRIAL COURT ERRED IN DENYING MR. JOHNSTON’S RULE
3.853 MOTION FOR POSTCONVICTION DNA TESTING.
The State begins by reciting the circuit court’s order denying Mr. Johnston’s claim. The State then reiterates that Mr. Johnston had scratches on his face and neck immediately after the victim’s body was found, that they were not present prior to the murder, and that they were not caused by Mr. Johnston’s puppy (Answer at 5, fn 2). The logical conclusion to be drawn from the State’s argument is that the scratches on Mr. Johnston had to have come from the victim.1 By the State’s own argument, it would seem that DNA testing is appropriate here. If the DNA evidence under the victim’s fingernails does not match Mr. Johnston, then he did not commit the murder.
The State proceeds to assert that Mr. Johnston is suggesting that the evidence against him be re-assessed and that Mr. Johnston is arguing for a complete review of the sufficiency of the evidence (Answer at 6). Contrary to the State’s version of Mr. Johnston’s argument, Mr. Johnston presented facts to establish that favorable DNA results would exonerate him from the
1In fact, during Mr. Johnston’s trial, the prosecutorasserted that there was a violent struggle, during which thevictim scratched Mr. Johnston’s face and neck (T. 986).
-1-
crime.2 This was his burden under Fla. R. Crim. P. 3.853. Mr.
Johnston has met this burden, and the State has done nothing to
show otherwise.3
The State also claims that Mr. Johnston’s 3.853 motion does
not explain how DNA testing could prove his innocence (Answer at
8). The State is mistaken. As Mr. Johnston explained in his
3.853 motion, the State linked Mr. Johnston’s scratches on his
face and neck, as well as the blood on his clothes and shoes, to
the murder. Investigator Dupuis testified as to these stains and
how the blood spatter projected from the victim to Mr. Johnston.
In a case in which there were no eyewitnesses, no fingerprint
evidence, no hair evidence and no confession, the absence of the
victim’s blood on Mr. Johnston, as well as the absence of Mr.
2Moreover, the State ignores the point that Mr. Johnston ismaking: that he is mentally ill, that he has made manyinconsistent statements, and that the circuit court cherry-pickedonly those statements that were beneficial to denying this issue.
3The State’s claim that witnesses confirmed Mr. Johnston’s ownership of the butterfly necklace and the watch (Answer at 7,fn 5), is misleading. While Patricia Mann initially stated thatshe had seen Mr. Johnston wearing this necklace at the 7-ElevenStore prior to the murder (T. 572), she later admitted that whatshe actually saw around his neck was a heart-shaped necklace (T.577). The fact that Mr. Johnston was wearing a heart-shapednecklace that evening was later confirmed by the testimony ofFarron Martin who stated that Mr. Johnston was wearing a heart-shaped pendant when he left the apartment at 1:00 A.M. (T. 713).
Additionally, Officer Candeleria testified that heencountered Mr. Johnston earlier that morning at a bar and thathe noticed the watch Mr. Johnston was wearing (T. 531). Officer Candeleria subsequently testified at trial that the watch foundat the scene appeared to be the same watch he saw Mr. Johnstonwearing earlier at the bar (T. 531).
-2-
Johnston’s DNA under the victim’s fingernails, would surely result in an exoneration.
In asserting that this case does not present a factual scenario where DNA testing could provide any benefit, the State in an accompanying footnote seemingly relies on the fact that no testing was conducted at the 1984 trial on the fingernail scrapings because of the impossibility of obtaining meaningful results (Answer at 9, fn 6). The State cannot possibly believe that science hasn’t advanced in the last 25 years to allow for such testing today. Even the most casual observer would likely recognize that minute quantities of blood are sufficient for DNA testing.4
As a final point, while conceding that Mr. Johnston’s 3.853 motion is "technically permissible" (Answer at 11), the State nevertheless disparages Mr. Johnston for pursuing an avenue to which he is entitled ("Johnston’s motion is no more than a blatant and frivolous attempt to delay his execution" (Answer at 11). Perhaps the State’s need to resort to such tactics is its way of attempting to avoid the fact that Mr. Johnston has satisfied the requirements of Rule 3.853 and is therefore
4Forensic serologist Keith Paul testified at trial thatthere appeared to be minute quantities of blood on submittedfingernails, but he conducted no tests because the amount wasinsufficient for testing purposes (T. 879).
-3-
entitled to DNA testing.5 Mr. Johnston submits that this case should be remanded to the circuit court for DNA testing in accordance with Fla. R. Crim. P. 3.853.
ARGUMENT II
NEWLY DISCOVERED EVIDENCE HAS REVEALED THAT MR. JOHNSTON WAS CONVICTED BASED UPON INFIRM FORENSIC EVIDENCE IN VIOLATION OF THE FIFTH, EIGHTH, ANDFOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION.
This Court has recognized that "reports" issued by governmental or other bodies that affect the integrity of a defendant’s trial or penalty phase can constitute newly discovered evidence. See, Trepal v. State, 846 So.2d, 405, 409410 (Fla. 2003)(relinquishing jurisdiction for defendant to file a new successive motion to vacate judgment and sentence based on the newly discovered information in the report released by Office of the Inspector General, U.S. Dept. Of Justice, The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosive-Related and Other Cases (1997); receded from on other grounds, Guzman v. State, 868 So.2d 498 (Fla. 2003). The State takes issue with that fact and argues that "To the extent that further discussion is necessary, reports similar in character to this one have not been considered to be
5Undersigned counsel was appointed to this case less thanthree weeks ago. He reviewed the case and raised what he considered to be viable issues. Undersigned counsel raised theseissues in good faith, and any insinuation by the State to thecontrary is both uncalled for and untrue.
-4-
newly discovered evidence. Trepal v. State, 846 So.2d 405(Fla. 2003). FN8 The report in Trepal contained information that actually concerned the case before the court. Trepal, 846 So.2d at 409. That is certainly not the case here." (Answer at 14).
The State is mistaken as to what Trepal involved and its implications. The relevant issue argued in Trepal, as it relates to the case at bar, concerned the investigation into fraud at the FBI Laboratory and specifically the reported findings. See, Office of the Inspector General, U.S. Dep’t of Justice, The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosive-Related and Other Cases (1997). Trepal’s case was one of those investigated and this Court remanded his case while on appeal to allow Trepal to file a postconviction motion in the circuit court to address the relevant claims. A full evidentiary hearing was held on Trepal’s motion. Although Trepal’s claim was ultimately denied, Trepal, 846 So.2d at 409, this Court did not hold that the report was not newly discovered evidence as implied by the State in its argument. Significantly, as noted above, this Court remanded for an evidentiary hearing on the matters in the report that related to Trepal. The same should be done in Mr. Johnston’s case with regard to the type of testing that was conducted and thereafter questioned in the National Academy of Sciences report, Strengthening Forensic Science in the United State: A Path
-5-
Forward, http://www.nap.edu/catalog/12589.html, Prepublication Copy.
ARGUMENT III
THE TRIAL COURT ERRED IN DENYING MR. JOHNSTON’S REQUEST
FOR FORENSIC TESTING RESULTING IN A VIOLATION OF MR.
JOHNSTON’S RIGHTS TO DUE PROCESS UNDER BOTH THE U.S.
AND FLORIDA CONSTITUTIONS.
The circuit court and the State have both misapprehended the value of the forensic testing requested by Mr. Johnston. The State quotes and champions the circuit court’s finding that "there is no reasonable probability that the results of additional forensic testing would exonerate Mr. Johnston of the crime (Answer at 16). In doing so, the State ignores the fact that other than the aforementioned conclusory statement, the circuit court provides no rationale for the basis of its denial.
A review of the record reveals just how important the forensic evidence was to the State’s case. The State’s closing argument, for example, belies the State’s current claim that the forensic evidence and any testing of it would not have any bearing on Mr. Johnston’s case, much less tend to exonerate him:
Now, Mr. Wolfe mentioned to you that much of theState’s case is based on circumstantial evidence. I would agree that a good deal of the State’s caseis based on circumstantial evidence.
(T. 958). * * *
-6-
When Mr. Wolfe has talked to you a little bit
about the officers who got to the scene and that Mr.
Johnston was there, from listening to Mr. Wolfe’s
argument, I suspect that he wants you to believe that
at that time the officers decided that David Johnston
was there, that he had made a few minor contradictions
in his statements and that they decided to arrest him.
Well, I would ask you to carefully consider the
evidence and what the officers knew when they got
there. When the officers first arrived on scene they
didn’t have any reason to suspect David Johnston.
He was the person that called the 911 number and
reported it at that point in time. They didn’t have any
reason to look at him and think that he was the
suspect.
It was the physical evidence they found at the
scene and the stories that Mr. Johnston had told them
that aroused their suspicions at that time and what did
Mr. Johnston do?
(T. 959).
* * *
Now, what else did the officers notice at thescene?
The officers also noticed some scratch marks on
Mr. Johnston’s face. They asked him if he had been in
any arguments or anything earlier in the evening and he
hadn’t and that was some good hard evidence the officer
saw at the scene that aroused their suspicions about
Mr. Johnston.
(T. 960-61).
* * *
What else did the officers know before they madethe arrest?
The officers had investigated the outside of the
scene and they found some footprints outside by the
front kitchen window. That was another piece of
evidence that they had.
-7-
They compared that with the shoes of Mr. Johnstonat that point in time and the treadwear on his shoesseemed to match the footprints they saw outside thewindow which would lead the officers to believe that David Eugene Johnston broke the front window to MaryHammond’s apartment and Mr. Johnston in his initialstatements to the police never mentioned him standingaround that front window to the apartment.6
(T. 962).
* * *
Mr. Wolfe wants you to believe that whoever thereal murderer is, their fingerprints are on the cokecan but no where (sic) else in the apartment.
If you will remember the testimony of OfficerHietchew, the fingerprints are not always left whensomeone touches an object.
All right. Fingerprints are sometimes left. Thereare certain factors that come into consideration. The fingerprints last for periods of time.
It’s just as consistent that whoever bought thatcoke can, if Miss Hammond bought it at the grocerystore and a bagboy touched it and put it in her car.It’s just as consistent as being the real murderers.
There is no way of knowing who those fingerprints
6 Mr. Johnston has requested testing and examination ofthese footprints. Plaster casts are still in evidence at theOrlando Police Department.
Interestingly, the State also had Terrel Kingery testifyregarding pattern evidence relating to Mr. Johnston’s shoes (T.740-52). He received plaster casts, a pair of shoes, andphotographs of shoe tracks, among other things (T. 742).Subsequently, he compared the prints and expressed the opinionthat Mr. Johnston’s left shoe could have made the print (T. 745).Kingery described the process he utilized as inking the shoes,putting the shoes on his feet (not the same size as Mr. Johnston)and then personally making the prints. He admitted the shoes had already been tested for blood and that he did not use the samesoil as that at the crime scene.
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belong to.7
(T. 982).
* * *
That happened during a violent struggle. Thathappened when Mary Hammond was fighting for her life.That happened when Mary Hammond was fighting for herlife. That happened when Mary Hammond was scratchingand clawing at David Eugene Johnston when she scratchedhis face and his neck and she ripped that chain fromhis neck and then it lodged in her hair.8
(T. 986)(emphasis added).
* * *
There is no evidence that anybody else was in thatapartment except David Eugene Johnston and I would ask you to return a verdict that speaks the truth becausethat’s what a trial is.
(T. 989)(emphasis added).
For the State to now advance and persist in its argument
that somehow the forensic evidence is irrelevant to this case is
baseless and without merit. At trial, the State relied
extensively upon the forensic evidence to establish that Mr.
Johnston was the one and only assailant of Mary Hammond and to
7 Gene Hietchew testified that fourteen latent prints hadbeen lifted at the crime scene of which four were usable (T.681). The prints did not match Mary Hammond, Kevin Williams, orDavid Johnston (T. 682). However, the police failed to comparethe prints of Jose Gutierrez who had been observed within hoursof the crime sitting in the driveway looking as if he werespoiling for a fight. Mr. Johnston has requested the opportunityto compare those fingerprints.
8 The fingernail clippings containing flesh and blood arestill in the possession of Orlando Police Department.
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disprove his assertion that she had already been attacked prior to his arrival.
In Mr. Johnston’s case the value of the testing is heightened by the State’s reliance on the contradictions in his statements, Mr. Johnston’s profound mental illness, brain damage and the fact he operates at a mental age of 6.6 years to 11.8 years.9 Mentally challenged individuals such as Mr. Johnston often have difficulty remembering events and/or recounting them accurately. This inability heightens the risk of wrongful conviction and the need for forensic testing. When considered in conjunction with the newly discovered evidence claim that the testing procedures used in capital cases such as Mr. Johnston’s have been exposed as oftentimes fraught with error, it becomes glaringly apparent that Mr. Johnston’s case requires an independent forensic review of the evidence by his own forensic experts.
Additional testing of the evidence listed above is critical to Mr. Johnston’s claim of innocence, and would in no way harm the State. It would be a violation of due process for Mr. Johnston to be denied access to independent forensic testing in this case. See Osborne v. District Attorney’s Office, 521 F.3d 1118 (9th Cir. 2008), cert.granted, (currently pending) District
9 A neuropsychological evaluation conducted on May 5, 2009revealed the mental age cited.
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Attorney’s Office v. Osborne (U.S. Sup. Ct., Case No. 08-6). Clearly, the requested testing should be allowed and relief should issue.
ARGUMENT IV
THE CLEMENCY PROCESS AND THE MANNER IN WHICH IT WAS DETERMINED THAT MR. JOHNSTON SHOULD RECEIVE A DEATH WARRANT ON APRIL 20, 2009, WAS ARBITRARY AND CAPRICIOUSAND IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS.
In opposing this claim, the State relies on the fact that Mr. Johnston had a clemency proceeding in 1987 (Answer at 19). The State fails to address Mr. Johnston’s argument that the process that occurred in 1987 before Mr. Johnston’s life history was fully developed cannot be the "fail safe" that is envisioned by the United States Supreme Court. See Harbison v. Bell, – U.S.
– (April 1, 2009).
The State also asserts that Mr. Johnston’s argument that collateral counsel was precluded from seeking clemency until Harbison was decided "makes no sense". (Answer at 20). Perhaps the State has somehow overlooked the fact that in Marek v. State, the State represented to this Court, "For the Court’s benefit, it should be noted, first that Mr. McClain has asserted he will not
have adequate time to properly litigate Marek‘s case, however, in
spite of the state statute barring CCRC and registry appointed
counsel from handling clemency, he will devote his time to the
preparation of a clemency application. See Sections 27.51(5)(a);
-11-
27.511(9); and 27.5303(4), Fla. Statutes." (Marek v. State, Case No. 09-765, April 30, 2009 Answer Brief at 45,)(emphasis added). Mr. Johnston submits that relief is warranted.
ARGUMENT VI
BECAUSE OF THE INORDINATE LENGTH OF TIME THAT MR. JOHNSTON HAS SPENT ON DEATH ROW, ADDING HIS EXECUTIONTO THAT PUNISHMENT WOULD CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ANDBINDING NORMS OF INTERNATIONAL LAW.
The State asserts with bold emphasis that Mr. Johnston "cannot now contend that his punishment has been illegally prolonged because the delay in carrying out his sentence is in large part due to his own actions in challenging his conviction and sentence." (Answer at 27-28)(emphasis in original). In making this statement, the State neglects to address the fact that Mr. Johnston has been eligible for execution since 1999, when his first round of postconviction appeals were exhausted in state and federal court.10 Thus, the delay in carrying out Mr. Johnston’s execution is not attributable to him.
CONCLUSION
Based upon the record and his arguments, Mr. Johnston respectfully urges the Court to reverse the lower court, order a
10The fact that successive postconviction motions do notprevent a warrant from being signed is evident from the case ofMarek v. State, where Marek had a pending successive 3.851 motionwhen the Governor signed his warrant on April 20, 2009.
-12- ___________________________
new trial and/or resentencing, impose a sentence of life imprisonment, and/or remand for an evidentiary hearing.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished by electronic transmission and U.S. Mail, postage prepaid, to Kenneth S. Nunnelley, Office of the Attorney General, 444 Seabreeze Blvd., 5th Floor, Daytona Beach, FL 32118 on May 15, 2009.
CERTIFICATE OF FONT
This is to certify that this Reply Brief has been produced in a 12 point Courier type, a font that is not proportionately spaced.
D. TODD DOSS Florida Bar No. 0910384 725 Southeast Baya DriveSuite 102 Lake City, FL 32025-6092Telephone (386) 755-9119Facsimile (386) 755-3181
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David Johnston - Florida and DNA testing
THE TRIAL COURT ERRED IN DENYING MR. JOHNSTON’S RULE
3.853 MOTION FOR POSTCONVICTION DNA TESTING.
Pursuant to Fla. R. Crim. P. 3.853, Mr. Johnston filed a motion for postconviction DNA testing before the circuit court.
The motion asserted that:
1. The only scientific evidence linking Mr.Johnston to the crime was the presence of blood on him.The State emphasized this evidence throughout Mr.Johnston’s trial. Officer Stickley testified that when she interviewed Mr. Johnston at the crime scene, she noticed a red stain on his right tennis shoe and red dots on his right bicep (T. 498). Officer Kenneth Roberts testified that he observed brown colored splatters on Mr. Johnston’s tennis shoe, socks and arm, which appeared to be blood (T. 507). Officer Candalaria testified that he observed speckles of blood on Mr. Johnston’s left bicep, his left leg, his socks, and his shoe laces (T. 527-28). Investigator Richard Dupuis testified that he was asked by other officers to look at Mr. Johnston’s clothing and render an opinionas to whether there were any bloodstains on the clothing (T. 538).1 After explaining the concept of bloodstain analysis to the jury, Dupuis stated the he observed a reddish stain on Mr. Johnston’s right sockand that the stain projected in a downward motion. He also observed a dark stain on Mr. Johnston’s shoes, as well as a single red stain on the groin area of his shorts (T. 540). Dupuis then opined, based on his experience and training, that the stains appeared to be blood. He also opined that the clothing was a target for the blood, explaining that the blood was either projected or cast off something else and then came into contact with Mr. Johnston’s clothing (T. 541). Dupuis further stated that the blood was in motion when it came into contact with the clothing since it was not as mear type pattern (T. 542). Officer Ostermeyer testified that he took into evidence Mr. Johnston’s clothing. Additionally, he ran a presumptive bloodtest on the stains on the clothing; the test was positive for blood (T. 641-44). Reactions to the Luminol were also observed on the back of Mr. Johnston’s shirt, his sleeves, his waistband, the front of his shorts, the back pocket area of his shorts, and his right tennis shoe (T. 648). Investigator Mundy testified that during an interview with Mr. Johnston,he noticed a couple of red stains on his clothing (T.780). Forensic serologist Keith Paul testified that he tested Mr. Johnston’s clothing for the presence of blood and determined that there was human blood present on the stretchband of Mr. Johnston’s shorts (T. 854).Paul also conducted tests on the stains found on Mr.
-6
Johnston’s tennis shoes and determined that the stains were human blood (T. 867). Additionally, Paul indicated that there appeared to be minute quantities of blood on submitted fingernails, but he conducted no tests because the amount was insufficient for testing purposes (T. 879).
1 The basis for Dupuis’ expertise was that hehad attended several seminars relating to bloodstains (T. 538-39).
2. Mr. Johnston is innocent of the murder in the instant case. The evidence utilized in convicting him was largely circumstantial. There were no eyewitnessesto the crime nor did Mr. Johnston confess to the murder.
3.853 MOTION FOR POSTCONVICTION DNA TESTING.
Pursuant to Fla. R. Crim. P. 3.853, Mr. Johnston filed a motion for postconviction DNA testing before the circuit court.
The motion asserted that:
1. The only scientific evidence linking Mr.Johnston to the crime was the presence of blood on him.The State emphasized this evidence throughout Mr.Johnston’s trial. Officer Stickley testified that when she interviewed Mr. Johnston at the crime scene, she noticed a red stain on his right tennis shoe and red dots on his right bicep (T. 498). Officer Kenneth Roberts testified that he observed brown colored splatters on Mr. Johnston’s tennis shoe, socks and arm, which appeared to be blood (T. 507). Officer Candalaria testified that he observed speckles of blood on Mr. Johnston’s left bicep, his left leg, his socks, and his shoe laces (T. 527-28). Investigator Richard Dupuis testified that he was asked by other officers to look at Mr. Johnston’s clothing and render an opinionas to whether there were any bloodstains on the clothing (T. 538).1 After explaining the concept of bloodstain analysis to the jury, Dupuis stated the he observed a reddish stain on Mr. Johnston’s right sockand that the stain projected in a downward motion. He also observed a dark stain on Mr. Johnston’s shoes, as well as a single red stain on the groin area of his shorts (T. 540). Dupuis then opined, based on his experience and training, that the stains appeared to be blood. He also opined that the clothing was a target for the blood, explaining that the blood was either projected or cast off something else and then came into contact with Mr. Johnston’s clothing (T. 541). Dupuis further stated that the blood was in motion when it came into contact with the clothing since it was not as mear type pattern (T. 542). Officer Ostermeyer testified that he took into evidence Mr. Johnston’s clothing. Additionally, he ran a presumptive bloodtest on the stains on the clothing; the test was positive for blood (T. 641-44). Reactions to the Luminol were also observed on the back of Mr. Johnston’s shirt, his sleeves, his waistband, the front of his shorts, the back pocket area of his shorts, and his right tennis shoe (T. 648). Investigator Mundy testified that during an interview with Mr. Johnston,he noticed a couple of red stains on his clothing (T.780). Forensic serologist Keith Paul testified that he tested Mr. Johnston’s clothing for the presence of blood and determined that there was human blood present on the stretchband of Mr. Johnston’s shorts (T. 854).Paul also conducted tests on the stains found on Mr.
-6
Johnston’s tennis shoes and determined that the stains were human blood (T. 867). Additionally, Paul indicated that there appeared to be minute quantities of blood on submitted fingernails, but he conducted no tests because the amount was insufficient for testing purposes (T. 879).
1 The basis for Dupuis’ expertise was that hehad attended several seminars relating to bloodstains (T. 538-39).
2. Mr. Johnston is innocent of the murder in the instant case. The evidence utilized in convicting him was largely circumstantial. There were no eyewitnessesto the crime nor did Mr. Johnston confess to the murder.
2 There was no fingerprint evidence connecting Mr. Johnston to the crime.
3 Additionally, it was Mr.Johnston who called 911 upon finding the victim, who informed the victim’s granddaughter of what had occurred, and who stayed until the police arrived and made a full report as to how he came to find the victim. Clearly, the presence of blood on Mr. Johnston was the primary factor in obtaining a conviction. If DNA testing were to reveal that the purported blood on Mr. Johnston did not belong to the victim, he would be exonerated of the crime.
2 Mr. Johnston has always maintained hisinnocence.
3 There were, however, fingerprints from other individuals on the items tested by the State.
3. The specific evidence Mr. Johnston seeks to be tested is as follows:
a. Mr. Johnston’s tennis shoes; b. Mr. Johnston’s socks; c. Mr. Johnston’s shorts; d. Fingernail clippings.4
4Undersigned counsel orally amended the motion to include hair and debris folds currently held by the Orlando Police
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4. The aforementioned evidence in this case was not previously tested for DNA. 5. The last known location for the evidence was the Orlando Police Department. The evidence was originally obtained by the Orlando Police Department during its investigation of this case.
(May 6, 2009 Rule 3.853 Motion for Postconviction DNA Testing).
In its order denying Mr. Johnston’s motion, the circuit
court stated:
To be entitled to DNA testing, Mr. Johnston must be able to demonstrate that the test results would exonerate him or mitigate the sentence he received. See Rule 3.853(b)(3) and (4). However, he fails to establish that the testing would exonerate him even if the results showed that the blood did not belong to the victim and the material under the victim’s fingernails did not belong to him.
During his January 24, 1984 statement to police, Mr. Johnston admitted holding the victim’s body. Therefore, it was reasonable to expect her blood to be on his clothing, and the issue at trial was not whose blood it was but how it got there. Furthermore, there was other incriminating evidence against Defendant, including scratches on his face, discrepancies in his various statements, the discovery of his bloodstained watch on a bathroom counter in the victim’s house, and the fact that a butterfly pendant he was seen wearing was entangled in the victim’s hair. Additionally, Mr.Johnston admitted taking personal items from the victim’s house, allegedly as a memento of the victim.
Based upon the totality of the evidence presented at trial against Mr. Johnston, this Court therefore concludes that even if the results of DNA testing were to show that the blood on Mr. Johnston’s clothes did not belong to the victim and the material under the victim’s fingernails did not belong to him, there is no reasonable probability this result would exonerate him of the crime.
Department as evidence to be examined and tested. -8
(May 8, 2009 Order Denying Motion for Postconviction DNA Testing, at 2)(footnotes omitted).
Mr. Johnston submits that the circuit court’s finding, that there is no reasonable probability that DNA testing could exonerate him of the crime, is erroneous. First, the circuit court relied on the fact that Mr. Johnston at one point admitted to the police that he held the victim’s body, thus it was reasonable to expect there to be blood on him. However, the circuit court ignores the fact that Mr. Johnston is mentally ill,5 that he was recognized as such at the time of trial,6 and thus his many contradictory statements to the police are simply
5Among other mental issues, Mr. Johnston has been diagnosed as suffering from schizophrenia (R. 1140, 1178).
6On direct appeal, this Court affirmed the denial of Mr.Johnston’s Faretta claim, stating,
The trial judge made the proper inquiry in this case and correctly concluded that the desired waiver of counsel was neither knowing nor intelligent, in part, because of Johnston’s mental condition. In fact the court’s order denying Johnston’s motion for self-representation and counsel’s motion to withdraw specifically cited Johnston’s age, education, and
reports of psychiatrist and past admissions into mental hospitals. Clearly, the trial court was correct in concluding that Johnston would not receive a fair trial without assistance of counsel.
Johnston v. State, 497 So. 2d 863 (Fla. 1986)(emphasis added).
unreliable.7 Here, the circuit court has erroneously decided to rely on one of many contradictory statements of a mentally ill individual8 rather than order scientific testing which could conclusively demonstrate whether the blood on Mr. Johnston belonged to the victim, and whether the scrapings under the victim’s fingernails match the DNA of Mr. Johnston.9
Additionally, the circuit court’s determination that there is other incriminating evidence does not negate the fact that DNA testing could exonerate Mr. Johnston. For example, the circuit court relies on the fact that Mr. Johnston had scratches on his face. But it ignores the fact that DNA testing of the scrapings from the victim’s fingernails could establish that the scratches didn’t come from the victim.10 Further, as has been discussed
7In one statement to the police, Mr. Johnston related that he did not touch the victim (T. 494). In another statement, he did touch the victim (T. 823). In one statement to the police,Mr. Johnston related that the victim was dead when he found her
(T. 494). In another statement, she was alive and appeared to betrying to speak to him (T. 845).
8In recent years, there have been multiple instances where DNA evidence has been utilized to exonerate a convicted mentally ill defendant. In 2007, a schizophrenic named Anthony Capozziwas exonerated through DNA testing after spending 22 years in prison for rape.
9Moreover, the circuit court’s logic is flawed. While the circuit court has chosen to accept certain statements by Mr.Johnston as true, the court ignores other statement favorable to Mr. Johnston, such as the fact that he was emphatically consistent in his denial of the victim’s murder (T. 845).
10Mr. Johnston stated at one point that he got the scratches from his puppy.
-10
above, the court’s reliance on the discrepancies in Mr. Johnston’s statements simply verifies that DNA testing should be
valued above the rants of a schizophrenic.11
Additionally, the circuit court’s reliance on the wristwatch and butterfly necklace found at the scene is suspect. Again, in typical fashion, Mr. Johnston at various times claimed ownership of the necklace (T. 2346)12, and at other times denied ownership of it (T. 2337). Likewise, Mr. Johnston claimed and disclaimed ownership of the watch (T. 2336, 2346, 2348).
There can be no doubt that DNA testing could exonerate Mr. Johnston. There were no eyewitnesses to the crime nor did Mr. Johnston confess to the murder. There was no fingerprint evidence connecting Mr. Johnston to the crime.13 Clearly, the presence of blood on Mr. Johnston was the primary factor in obtaining a conviction. The absence of his DNA under the victim’s fingernails combined with the absence of the victim’s blood on Mr. Johnston would establish his innocence and would demonstrate that Mr. Johnston’s inconsistent rants are nothing more than that. Mr. Johnston submits that this case should be
11Certainly, the court didn’t take at face value Mr.Johnston’s prior claim that he had been attacked by Judge Powell in chambers following his evidentiary hearing.
12At one point, Mr. Johnson stated that he gave the necklace to the victim (R. 2353).
13There were, however, fingerprints from other individuals on the items tested by the State.
remanded for DNA testing in accordance with Fla. R. Crim. P.
3.853.
ARGUMENT II
NEWLY DISCOVERED EVIDENCE HAS REVEALED THAT MR. JOHNSTON WAS CONVICTED BASED UPON INFIRM FORENSIC EVIDENCE IN VIOLATION OF THE FIFTH, EIGHTH, ANDFOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION.
“Over the last two decades, advances in some forensic science disciplines, especially the use of DNA technology, have demonstrated that some areas of forensic science have great potential to help lawenforcement identify criminals. Many crimes that may have gone unsolved are now being solved because forensic science is helping identify the perpetrators.
Those advances, however, also have revealed that, in some cases, substantive information and testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people.This fact has demonstrated the potential danger of giving undue weight to evidence and testimony derived from imperfect testing and analysis. Morever, imprecise or exaggerated expert testimony has sometimes contributed to the admission of erroneous or misleading evidence.
Strengthening Forensic Science in the United States: A Path
Forward (free Executive Summary), S-3,
http://www.nap.edu/catalog/12589.html, last viewed May 5, 2009.
The preceding admonition was recently released February 18,
2009 in the executive summary of the pending report produced by
the National Academy of Sciences after conducting a study on
forensic sciences as directed by the U.S. Congress. The study
panel consisted of members of the forensic science community,
members of the legal community, and a diverse group of
scientists. “Experts who provided testimony included federal agency officials; academics and research scholars; private consultants; federal state and local law enforcement officials; scientists; medical examiners; a coroner; crime laboratory officials from the public and private sectors; independent investigators; defense attorneys; forensic science practitioners; and leadership of professional and standard setting organizations.” (internal citations omitted) Id. at S-2.
The end product of the Committee’s painstakingly thorough work was a comprehensive report. This report first became available when released by the Committee on Identifying the Needs of the Forensic Sciences Community on February 18, 2009. The final report constitutes newly discovered evidence that the “scientific” evidence used to convict Mr. Johnston is the result of methods with questionable and untested underlying scientific principles, in violation of Mr. Johnston’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution. This Court has recognized that “reports” issued by governmental or other bodies that affect the integrity of a defendant’s trial or penalty phase can constitute newly discovered evidence. See, Trepal v. State, 846 So.2d, 405, 409410 (Fla. 2003)(relinquishing jurisdiction for defendant to file a new successive motion to vacate judgment and sentence based on the newly discovered information in the report released by Office
of the Inspector General, U.S. Dept. Of Justice, The FBI
Laboratory: An Investigation into Laboratory Practices and
Alleged Misconduct in Explosive-Related and Other Cases (1997);
receded from on other grounds, Guzman v. State, 868 So.2d 498
(Fla. 2003).
The Committee made a number of specific recommendations for
improving the many deficiencies within the forensic science
community. Issues studied that are relevant to Mr. Johnston’s
case included pattern evidence such as fingerprints, footwear
impressions and bloodstain pattern analysis. In regards to these
types of analysis the study found that:
Often in criminal prosecutions and civil litigation, forensic evidence is offered to support conclusions about “individualization” (sometimes referred to as“matching” a specimen to a particular individual or other source) or about classification of the source of the specimen into one of several categories. With the exception of nuclear DNA analysis, however, no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and specific individual or source. In terms of scientific basis, the analytically based disciplines generally hold a notable edge over disciplines based on expert interpretation.Id. at S-5.
* * *
The simple reality is that the interpretation of forensic evidence is not always based on scientific studies to determine its validity. This is a serious problem. Although research has been done in some disciplines, there is a notable dearth of peer-reviewed, published studies establishing the scientific bases and validity of many forensic methods. Id. at S
6.
-14
* * *
The study panel then went on to suggest the need for
research to establish limits and measures on performance to
prevent overreaching. The panel stated:
The development of such research programs can benefit significantly from other areas, notably from the large body of research on the evaluation of observer performance in diagnostic medicine and from the findings of cognitive psychology on the potential forbi as and error in human observers. FN8 The findings offorensic experts are vulnerable to cognitive and contextual bias. See, e.g. I.E. Dror, D. Charlton, and
A.E. Peron. 2006. Contextual information renders experts vulnerable to making erroneous identifications. Forensic Science International 156:74, 77. (“Our studyshows that it is possible to alter identification decisions on the same fingerprint, solely by presenting it in a different context.”); I.E. Dror and D.Charlton. 2006. Why experts make errors. Journal of Forensic Identification 56(4):600; Giannelli, supra note 6, pp. 220-222. Unfortunately, at least to date, there is no good evidence to indicate that the forensic science community has made a sufficient effort to address the bias issue; thus, it is impossible for the committee to fully assess the magnitude of the problem.Id. at S-6.14
* * *
The law’s greatest dilemma is its heavy reliance on forensic evidence, however, concerns the question of whether ------ and to what extent ------ there is science in any given forensic science discipline. Id.at S-7.
14 Because of these issues, and others, the first recommendation of the report is the formation of an independent federal entity: the National Institute of Forensic Sciences. Id. at S-14. This is necessary because the current “forensic science enterprise lacks the necessary governance structure to pull itself up from its current weaknesses.” Id. at S-12.
-15
* * *
But because accused parties in criminal cases are convicted on the basis of testimony from forensic science experts, much depends upon whether the evidence offered is reliable. Furthermore, in addition to protecting innocent persons from being convicted of crimes that they did not commit, we are also seeking to protect society from persons who have committed criminal acts. Law enforcement officials and the members of society they serve need to be assured that forensic techniques are reliable. Therefore, we must limit the risk of having the reliability of certain forensic science methodologies judicially certified before the techniques have been properly studied and their accuracy verified by the scientific community.Id. at S-9.
In Mr. Johnston’s case, questionable expert testimony was
utilized against him. For example, testimony reveals that
Investigator Dupius testified as to blood spatter. Interestingly,
Investigator Dupius was exclusively trained by the now
discredited Judith Bunker. Ms. Bunker was revealed to have
converted herself into an expert in bloodstain pattern analysis
from a brief four hour workshop conducted by Mr. Herbert
MacDonnell in Birmingham, Alabama. With only this minimal
experience Ms. Bunker launched a career instructing law
enforcement upon the complex science of blood-stain pattern
analysis.15
Investigator Dupius testified that he observed a reddish
stain on Mr. Johnston’s right sock and that the stain projected
15 This claim was raised and rejected as to Ms. Bunker’s
lack of credentials in Johnston v. State, 708 So.2d 590 (Fla.
1998).
in a downward motion. He also observed a dark stain on Mr. Johnston’s brown shoes, as well as a single red stain on the groin area of his shorts (R. 540). Dupius then admitted that he conducted no testing as to whether blood was actually on the socks, although he surmised that based on his training and experience it was blood (R 541).
Dupius further testified that the blood was projected or was cast-off and was in motion when it came into contact with Mr. Johnston’s clothing since it was not a smear pattern (R. 541-42). Investigator Dupius also related that he observed several patterns within Mary Hammond’s home, however, he did not mention any of it being tested. Based upon these observations he related that the three arches of staining on the west wall were cast-off stains because a bloody object had been in motion towards the right side of the body (R. 545). He also opined that the killer was right-handed (R. 553).
Officer Ostermeyer also testified regarding blood evidence supposedly upon Mr. Johnston’s clothing (R. 641-44). He completed presumptive testing and found Mr. Johnston’s clothing tested positive for the presence of blood. The areas reacting to the Luminol were the back of the Mr. Johnston’s shirt, his sleeves, his waistband, the front of his shorts, the back pocket area of his shorts, and his right shoe (R. 648-49). The officer admitted the test was not conclusive and can give false positives
(R. 651-53).
Blood spatter is the type of evidence that is listed as
suspect within the study conducted by the National Academy of
Sciences. The study relates:
However, many sources of variability arise with the production of bloodstain patterns, and their interpretation is not nearly as straightforward as the process implies. Interpreting and integrating bloodstain patterns into a reconstruction requires, at a minimum:
* an appropriate scientific education;* knowledge of the terminology employed(e.g., angle of impact, arterialspurting, back spatter, castoffpattern);* an understanding of limitations of the measurement tools used to make bloodstain pattern measurements (e.g.,calculators, software, lasers,protractors);* an understanding of applied mathematics and the use of significant figures;* an understanding of the physics of fluid transfer;* an understanding of pathology of wounds;and * an understanding of the general patterns blood makes after leaving the human body.
Strengthening Forensic Science in the United State: A Path
Forward, http://www.nap.edu/catalog/12589.html, Prepublication
Copy, at 5-38.
None of these potential sources of variability were explored
in Mr. Johnston’s case, including the fact Investigator Dupius
received virtually no meaningful instruction in this complex
science. Mere conclusory allegations were made with no
meaningful cross-examination or adversarial testing. The reliability necessary to sustain the conviction and impending execution is clearly lacking.
Gene Hietchew testified that fourteen latent prints had been lifted at the crime scene of which four were usable (R. 681). The prints did not match Mary Hammond, Kevin Williams, or David Johnston (R. 682). However, the police failed to compare the prints of Jose Gutierrez who had been observed within hours of the crime sitting in the driveway looking as if he were spoiling for a fight.
The State also had Terrel Kingery testify regarding pattern evidence relating to Mr. Johnston’s shoes (R. 740-52). He received plaster casts, a pair of shoes, and photographs of shoe tracks, among other things (R. 742). Subsequently, he compared the prints and expressed the opinion that Mr. Johnston’s left shoe could have made the print (R. 745). Kingery described the process he utilized as inking the shoes, putting the shoes on his feet (not the same size as Mr. Johnston) and then personally making the prints. He admitted the shoes had already been tested for blood and that he did not use the same soil as that at the crime scene.
Within the National Academy of Sciences report footwear pattern evidence is specifically discussed. “Class characteristics of footwear and tires result from repetitive
controlled processes that are typically mechanical, such as those used to manufacture items in quantity. Although defined similarly by various authors, Bodziak describes footwear class characteristics as ‘an intentional or unavoidable characteristic that repeats during the manufacturing process and is shared by one or more other shoes.’” (footnote omitted), Strengthening Forensic Science in the United State: A Path Forward, http://www.nap.edu/catalog/12589.html, Prepublication Copy, at 5
15.
The study goes on to consider individual wear characteristics by stating, “For footwear, Bodziak writes that ‘individual identifying characteristics are characteristics that result when something is randomly added to or taken away from a shoe outsole that either causes or contributes to making that shoe outsole unique.’” (footnote omitted), Id.
In Mr. Johnston’s case these differences and methods of interpretation were either not used or not brought out in testimony. Simply testifying to a match is not enough. The aforementioned guidelines must be adhered to in order to provide the kind of reliability required to convict and execute a man.
The report further calls into question the terminology used to describe testing results. Many terms that are utilized to describe the degrees of association between evidentiary material and particular people or objects, e.g., “match,” “consistent
with,” “identical,” “similar in all respects tested,” and cannot
be excluded as the source of.” Id. at S-15. The Committee
concluded that “[t]he use of such terms can and does have a
profound effect on how the trier of fact in a criminal or civil
matter perceives and evaluates scientific evidence.” Id.
When analyzing the significant advances in DNA technology
and its immense importance to law enforcement to law enforcement
the Committee observed that DNA advances have:
revealed that, in some cases, substantive information and testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people. This fact has demonstrated the potential danger of giving undue weight to evidence and testimony derived from imperfect testing and analysis. Moreover, imprecise or exaggerated expert testimony has sometimes contributed to the admission of erroneous or misleading evidence. NAS Report at S
13. The information, analysis, and ultimate conclusions contained in the NAS Report reveal that “scientific” evidence produced by methods with questionable and untested underlying scientific principles is being used to convict defendants.
The use of this questionable “scientific” evidence, coupled with the utter lack of standardized reporting and terminology in forensic disciplines renders both the conviction as well as the death sentence unreliable. Under the Eighth Amendment, the death penalty must be imposed fairly, and with reasonable consistency, or not at all. Furman v. Georgia, 408 U.S. 238, 310 (1972)(per
curiam). Furman stands for the proposition most succinctly explained by Justice Stewart in his concurring opinion: “The Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be . . . wantonly and . . . freakishly imposed” on a “capriciously selected random handful” of individuals. Id. at 310 (Stewart, J. concurring). Differences in terminology, for example, could mean the difference between life and death: two experts in the same field of forensic science may testify in two different cases and use differing terminology to describe the same results so that one defendant is convicted or sentenced to death on the basis of that evidence and the other is not. The imposition and carrying out of the death penalty in cases in which untested and unreliable “scientific” evidence is used to convict defendants also constitutes cruel and unusual punishment. When the myriad of problems with so-called “scientific” evidence are considered together in analyzing its ability to produce a reliable result, the conclusion is inescapable: as Justice Brennan wrote in his concurring opinion in Furman, “it smacks of little more than a lottery system.” Furman, 408 U.S. at 293 (Brennan, J., concurring). The use of “scientific” evidence produced by methods of questionable and untested underlying scientific principles cannot “assure consistency, fairness, and rationality” and cannot “assure that sentences of death will not
be ‘wantonly’ or ‘freakishly’ imposed.” Proffitt v. Florida, 428
U.S. 242, 259-260 (1976).
Mr. Johnston submits that this issue should be remanded for an evidentiary hearing and thereafter, Rule 3.851 relief should issue.
ARGUMENT III
THE TRIAL COURT ERRED IN DENYING MR. JOHNSTON’S REQUEST
FOR FORENSIC TESTING RESULTING IN A VIOLATION OF MR.
JOHNSTON’S RIGHTS TO DUE PROCESS UNDER BOTH THE U.S.
AND FLORIDA CONSTITUTIONS.
Mr. Johnston was charged with the murder of Mary Hammond and convicted and sentenced to death in June 1, 1984. Numerous articles of evidence were collected and tested by the State of Florida. At trial, the State introduced numerous items of evidence and adduced expert testimony regarding the evidence.
Officer Ostermeyer testified regarding blood evidence supposedly upon Mr. Johnston’s clothing (R. 641-44). He completed presumptive testing and found Mr. Johnston’s clothing tested positive for the presence of blood. The areas reacting to the Luminol were the back of the Defendant’s shirt, his sleeves, his waistband, the front of his shorts, the back pocket area of his shorts, and his right shoe (R. 648-49). The officer admitted the test was not conclusive and gives false positives (R. 65153).
Gene Hietchew testified that fourteen latent prints had been
lifted at the crime scene of which four were usable (R. 681). The prints did not match Mary Hammond, Kevin Williams, or David Johnston (R. 682). However, the police failed to compare the prints of Jose Gutierrez who had been observed within hours of the crime sitting in the driveway looking as if he were spoiling for a fight.
The State also had Terrel Kingery testify regarding pattern evidence relating to Mr. Johnston’s shoes (R. 740-52). He received plaster casts, a pair of shoes, photographs of shoe tracks, among other things (R. 742). Subsequently, he compared the prints and expressed the opinion that Mr. Johnston’s left shoe could have made the print (R. 745). Kingery described the process he utilized as inking the shoes, putting the shoes on his feet (not the same size as Mr. Johnston) and then personally making the prints. He admitted the shoes had already been tested for blood and that he did not use the same soil as that at the crime scene.
Mr. Johnston has had numerous attorneys over the years and been effectively without counsel for the last couple of years. None of these attorneys did any independent testing. Indeed, many of the testing procedures available now did not exist during the time period when many of these attorneys represented Mr. Johnston or the science and protocols have since progressed to allow a greater degree of reliability. See, Claim II, supra.
When considered in conjunction with the newly discovered evidence claim that the testing procedures used in capital cases such as Mr. Johnston’s have been exposed as often times fraught with error, it becomes glaringly apparent that Mr. Johnston’s case requires an independent forensic review of the evidence in by his own forensic experts.
The trial court clearly erred when it found that, “As this Court concluded in the Order Denying Motion for Postconviction DNA Testing, there is no reasonable probability that the results of additional forensic testing would exonerate Mr. Johnston of the crime.” Order Denying Motion to Produce Evidence for Forensic Testing and Request for Hearing at 1.
The forensic evidence in this case was circumstantial in nature.16 Mr. Johnston has always maintained his innocence in this case. Mr. Johnston’s postconviction forensic experts will review the facts and evidence in this case and conduct forensic testing to utilize the most modern testing and science to ascertain the validity of the prior testing conducted 25 years ago. Additional testing of the evidence listed above is critical to Mr. Johnston’s claim of innocence, and would in no way harm the State. It would be a violation of due process for Mr. Johnston to be denied access to independent forensic testing in
16 Mr. Johnston adopts and re-alleges the argument regarding the exculpatory nature of the proposed testing as argued in ClaimI, supra.
this case.
The U.S. Court of Appeals for the Ninth Circuit recently
found that a state prisoner has a right to postconviction access
to biological evidence used to convict him. Osborne v. District
Attorney’s Office, 521 F.3d 1118 (9th Cir. 2008), cert.granted,
(currently pending) District Attorney’s Office v. Osborne (U.S.
Sup. Ct., Case No. 08-6). The biological evidence in Osborne
related to DNA testing and was the subject of a civil rights
action filed pursuant to §1983. The State of Alaska had blocked
Osborne’s access to DNA testing.17 In granting Osborne access to
the biological evidence the Ninth Circuit observed that:
The evidence in question can be produced easily and without cost to the State and, if favorable to Osborne, would be strong evidence in support of post-conviction relief. Nonetheless, the State seeks to foreclose such relief by its simple refusal to open the evidence locker . . .
The State supports its position with the argument that the circumstantial and eyewitness evidence in this case is also strong evidence of Osborne’s guilt, and thus granting access is not likely to “further the truthseeking function of our criminal justice system.” As recent history has shown, however, DNA evidence has the capability of refuting otherwise irrefutable inculpatory evidence, and as we have already established this case is no exception.
If the inculpatory evidence has been correctly interpreted, further DNA testing will confirm that Osborne is guilty as charged and convicted. But it remains a very real possibility that further DNAtesting will be exculpatory and may even lead to
17 Mr. Johnston adopts the due process argument within this claim as if fully argued in Claim I as well.
-26
Osborne’s exoneration. In the former case, the State will have lost nothing; indeed, it will gain even more definitive proof of Osborne’s guilt and will be relieved of the burden of further post-conviction litigation. In the latter case, however, Osborne will obviously gain a great deal, as will the State, whose paramount interests are in seeking justice, not obtaining convictions at all costs, and which will then have strong evidence for use in catching and punishing the real perpetrator. Importantly, the State is prejudiced in neither case, and the truth-seeking function of the criminal justice system is furthered in either case. Osborne at 1141.
Osborne, 521 F.3d at 1141. The same holds true in Mr. Johnston’s
case. The minimal amount of time required for DNA and forensic
testing relative to the twenty-six years Mr. Johnston has spent
on Florida’s death row does little, if anything, to prejudice the
State of Florida. However, this requested testing, if the
results are exculpatory, has the potential to save Mr. Johnston’s
life. Clearly, the requested testing should be allowed and
relief should issue.
2 Mr. Johnston has always maintained hisinnocence.
3 There were, however, fingerprints from other individuals on the items tested by the State.
3. The specific evidence Mr. Johnston seeks to be tested is as follows:
a. Mr. Johnston’s tennis shoes; b. Mr. Johnston’s socks; c. Mr. Johnston’s shorts; d. Fingernail clippings.4
4Undersigned counsel orally amended the motion to include hair and debris folds currently held by the Orlando Police
-7
4. The aforementioned evidence in this case was not previously tested for DNA. 5. The last known location for the evidence was the Orlando Police Department. The evidence was originally obtained by the Orlando Police Department during its investigation of this case.
(May 6, 2009 Rule 3.853 Motion for Postconviction DNA Testing).
In its order denying Mr. Johnston’s motion, the circuit
court stated:
To be entitled to DNA testing, Mr. Johnston must be able to demonstrate that the test results would exonerate him or mitigate the sentence he received. See Rule 3.853(b)(3) and (4). However, he fails to establish that the testing would exonerate him even if the results showed that the blood did not belong to the victim and the material under the victim’s fingernails did not belong to him.
During his January 24, 1984 statement to police, Mr. Johnston admitted holding the victim’s body. Therefore, it was reasonable to expect her blood to be on his clothing, and the issue at trial was not whose blood it was but how it got there. Furthermore, there was other incriminating evidence against Defendant, including scratches on his face, discrepancies in his various statements, the discovery of his bloodstained watch on a bathroom counter in the victim’s house, and the fact that a butterfly pendant he was seen wearing was entangled in the victim’s hair. Additionally, Mr.Johnston admitted taking personal items from the victim’s house, allegedly as a memento of the victim.
Based upon the totality of the evidence presented at trial against Mr. Johnston, this Court therefore concludes that even if the results of DNA testing were to show that the blood on Mr. Johnston’s clothes did not belong to the victim and the material under the victim’s fingernails did not belong to him, there is no reasonable probability this result would exonerate him of the crime.
Department as evidence to be examined and tested. -8
(May 8, 2009 Order Denying Motion for Postconviction DNA Testing, at 2)(footnotes omitted).
Mr. Johnston submits that the circuit court’s finding, that there is no reasonable probability that DNA testing could exonerate him of the crime, is erroneous. First, the circuit court relied on the fact that Mr. Johnston at one point admitted to the police that he held the victim’s body, thus it was reasonable to expect there to be blood on him. However, the circuit court ignores the fact that Mr. Johnston is mentally ill,5 that he was recognized as such at the time of trial,6 and thus his many contradictory statements to the police are simply
5Among other mental issues, Mr. Johnston has been diagnosed as suffering from schizophrenia (R. 1140, 1178).
6On direct appeal, this Court affirmed the denial of Mr.Johnston’s Faretta claim, stating,
The trial judge made the proper inquiry in this case and correctly concluded that the desired waiver of counsel was neither knowing nor intelligent, in part, because of Johnston’s mental condition. In fact the court’s order denying Johnston’s motion for self-representation and counsel’s motion to withdraw specifically cited Johnston’s age, education, and
reports of psychiatrist and past admissions into mental hospitals. Clearly, the trial court was correct in concluding that Johnston would not receive a fair trial without assistance of counsel.
Johnston v. State, 497 So. 2d 863 (Fla. 1986)(emphasis added).
unreliable.7 Here, the circuit court has erroneously decided to rely on one of many contradictory statements of a mentally ill individual8 rather than order scientific testing which could conclusively demonstrate whether the blood on Mr. Johnston belonged to the victim, and whether the scrapings under the victim’s fingernails match the DNA of Mr. Johnston.9
Additionally, the circuit court’s determination that there is other incriminating evidence does not negate the fact that DNA testing could exonerate Mr. Johnston. For example, the circuit court relies on the fact that Mr. Johnston had scratches on his face. But it ignores the fact that DNA testing of the scrapings from the victim’s fingernails could establish that the scratches didn’t come from the victim.10 Further, as has been discussed
7In one statement to the police, Mr. Johnston related that he did not touch the victim (T. 494). In another statement, he did touch the victim (T. 823). In one statement to the police,Mr. Johnston related that the victim was dead when he found her
(T. 494). In another statement, she was alive and appeared to betrying to speak to him (T. 845).
8In recent years, there have been multiple instances where DNA evidence has been utilized to exonerate a convicted mentally ill defendant. In 2007, a schizophrenic named Anthony Capozziwas exonerated through DNA testing after spending 22 years in prison for rape.
9Moreover, the circuit court’s logic is flawed. While the circuit court has chosen to accept certain statements by Mr.Johnston as true, the court ignores other statement favorable to Mr. Johnston, such as the fact that he was emphatically consistent in his denial of the victim’s murder (T. 845).
10Mr. Johnston stated at one point that he got the scratches from his puppy.
-10
above, the court’s reliance on the discrepancies in Mr. Johnston’s statements simply verifies that DNA testing should be
valued above the rants of a schizophrenic.11
Additionally, the circuit court’s reliance on the wristwatch and butterfly necklace found at the scene is suspect. Again, in typical fashion, Mr. Johnston at various times claimed ownership of the necklace (T. 2346)12, and at other times denied ownership of it (T. 2337). Likewise, Mr. Johnston claimed and disclaimed ownership of the watch (T. 2336, 2346, 2348).
There can be no doubt that DNA testing could exonerate Mr. Johnston. There were no eyewitnesses to the crime nor did Mr. Johnston confess to the murder. There was no fingerprint evidence connecting Mr. Johnston to the crime.13 Clearly, the presence of blood on Mr. Johnston was the primary factor in obtaining a conviction. The absence of his DNA under the victim’s fingernails combined with the absence of the victim’s blood on Mr. Johnston would establish his innocence and would demonstrate that Mr. Johnston’s inconsistent rants are nothing more than that. Mr. Johnston submits that this case should be
11Certainly, the court didn’t take at face value Mr.Johnston’s prior claim that he had been attacked by Judge Powell in chambers following his evidentiary hearing.
12At one point, Mr. Johnson stated that he gave the necklace to the victim (R. 2353).
13There were, however, fingerprints from other individuals on the items tested by the State.
remanded for DNA testing in accordance with Fla. R. Crim. P.
3.853.
ARGUMENT II
NEWLY DISCOVERED EVIDENCE HAS REVEALED THAT MR. JOHNSTON WAS CONVICTED BASED UPON INFIRM FORENSIC EVIDENCE IN VIOLATION OF THE FIFTH, EIGHTH, ANDFOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION.
“Over the last two decades, advances in some forensic science disciplines, especially the use of DNA technology, have demonstrated that some areas of forensic science have great potential to help lawenforcement identify criminals. Many crimes that may have gone unsolved are now being solved because forensic science is helping identify the perpetrators.
Those advances, however, also have revealed that, in some cases, substantive information and testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people.This fact has demonstrated the potential danger of giving undue weight to evidence and testimony derived from imperfect testing and analysis. Morever, imprecise or exaggerated expert testimony has sometimes contributed to the admission of erroneous or misleading evidence.
Strengthening Forensic Science in the United States: A Path
Forward (free Executive Summary), S-3,
http://www.nap.edu/catalog/12589.html, last viewed May 5, 2009.
The preceding admonition was recently released February 18,
2009 in the executive summary of the pending report produced by
the National Academy of Sciences after conducting a study on
forensic sciences as directed by the U.S. Congress. The study
panel consisted of members of the forensic science community,
members of the legal community, and a diverse group of
scientists. “Experts who provided testimony included federal agency officials; academics and research scholars; private consultants; federal state and local law enforcement officials; scientists; medical examiners; a coroner; crime laboratory officials from the public and private sectors; independent investigators; defense attorneys; forensic science practitioners; and leadership of professional and standard setting organizations.” (internal citations omitted) Id. at S-2.
The end product of the Committee’s painstakingly thorough work was a comprehensive report. This report first became available when released by the Committee on Identifying the Needs of the Forensic Sciences Community on February 18, 2009. The final report constitutes newly discovered evidence that the “scientific” evidence used to convict Mr. Johnston is the result of methods with questionable and untested underlying scientific principles, in violation of Mr. Johnston’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution. This Court has recognized that “reports” issued by governmental or other bodies that affect the integrity of a defendant’s trial or penalty phase can constitute newly discovered evidence. See, Trepal v. State, 846 So.2d, 405, 409410 (Fla. 2003)(relinquishing jurisdiction for defendant to file a new successive motion to vacate judgment and sentence based on the newly discovered information in the report released by Office
of the Inspector General, U.S. Dept. Of Justice, The FBI
Laboratory: An Investigation into Laboratory Practices and
Alleged Misconduct in Explosive-Related and Other Cases (1997);
receded from on other grounds, Guzman v. State, 868 So.2d 498
(Fla. 2003).
The Committee made a number of specific recommendations for
improving the many deficiencies within the forensic science
community. Issues studied that are relevant to Mr. Johnston’s
case included pattern evidence such as fingerprints, footwear
impressions and bloodstain pattern analysis. In regards to these
types of analysis the study found that:
Often in criminal prosecutions and civil litigation, forensic evidence is offered to support conclusions about “individualization” (sometimes referred to as“matching” a specimen to a particular individual or other source) or about classification of the source of the specimen into one of several categories. With the exception of nuclear DNA analysis, however, no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and specific individual or source. In terms of scientific basis, the analytically based disciplines generally hold a notable edge over disciplines based on expert interpretation.Id. at S-5.
* * *
The simple reality is that the interpretation of forensic evidence is not always based on scientific studies to determine its validity. This is a serious problem. Although research has been done in some disciplines, there is a notable dearth of peer-reviewed, published studies establishing the scientific bases and validity of many forensic methods. Id. at S
6.
-14
* * *
The study panel then went on to suggest the need for
research to establish limits and measures on performance to
prevent overreaching. The panel stated:
The development of such research programs can benefit significantly from other areas, notably from the large body of research on the evaluation of observer performance in diagnostic medicine and from the findings of cognitive psychology on the potential forbi as and error in human observers. FN8 The findings offorensic experts are vulnerable to cognitive and contextual bias. See, e.g. I.E. Dror, D. Charlton, and
A.E. Peron. 2006. Contextual information renders experts vulnerable to making erroneous identifications. Forensic Science International 156:74, 77. (“Our studyshows that it is possible to alter identification decisions on the same fingerprint, solely by presenting it in a different context.”); I.E. Dror and D.Charlton. 2006. Why experts make errors. Journal of Forensic Identification 56(4):600; Giannelli, supra note 6, pp. 220-222. Unfortunately, at least to date, there is no good evidence to indicate that the forensic science community has made a sufficient effort to address the bias issue; thus, it is impossible for the committee to fully assess the magnitude of the problem.Id. at S-6.14
* * *
The law’s greatest dilemma is its heavy reliance on forensic evidence, however, concerns the question of whether ------ and to what extent ------ there is science in any given forensic science discipline. Id.at S-7.
14 Because of these issues, and others, the first recommendation of the report is the formation of an independent federal entity: the National Institute of Forensic Sciences. Id. at S-14. This is necessary because the current “forensic science enterprise lacks the necessary governance structure to pull itself up from its current weaknesses.” Id. at S-12.
-15
* * *
But because accused parties in criminal cases are convicted on the basis of testimony from forensic science experts, much depends upon whether the evidence offered is reliable. Furthermore, in addition to protecting innocent persons from being convicted of crimes that they did not commit, we are also seeking to protect society from persons who have committed criminal acts. Law enforcement officials and the members of society they serve need to be assured that forensic techniques are reliable. Therefore, we must limit the risk of having the reliability of certain forensic science methodologies judicially certified before the techniques have been properly studied and their accuracy verified by the scientific community.Id. at S-9.
In Mr. Johnston’s case, questionable expert testimony was
utilized against him. For example, testimony reveals that
Investigator Dupius testified as to blood spatter. Interestingly,
Investigator Dupius was exclusively trained by the now
discredited Judith Bunker. Ms. Bunker was revealed to have
converted herself into an expert in bloodstain pattern analysis
from a brief four hour workshop conducted by Mr. Herbert
MacDonnell in Birmingham, Alabama. With only this minimal
experience Ms. Bunker launched a career instructing law
enforcement upon the complex science of blood-stain pattern
analysis.15
Investigator Dupius testified that he observed a reddish
stain on Mr. Johnston’s right sock and that the stain projected
15 This claim was raised and rejected as to Ms. Bunker’s
lack of credentials in Johnston v. State, 708 So.2d 590 (Fla.
1998).
in a downward motion. He also observed a dark stain on Mr. Johnston’s brown shoes, as well as a single red stain on the groin area of his shorts (R. 540). Dupius then admitted that he conducted no testing as to whether blood was actually on the socks, although he surmised that based on his training and experience it was blood (R 541).
Dupius further testified that the blood was projected or was cast-off and was in motion when it came into contact with Mr. Johnston’s clothing since it was not a smear pattern (R. 541-42). Investigator Dupius also related that he observed several patterns within Mary Hammond’s home, however, he did not mention any of it being tested. Based upon these observations he related that the three arches of staining on the west wall were cast-off stains because a bloody object had been in motion towards the right side of the body (R. 545). He also opined that the killer was right-handed (R. 553).
Officer Ostermeyer also testified regarding blood evidence supposedly upon Mr. Johnston’s clothing (R. 641-44). He completed presumptive testing and found Mr. Johnston’s clothing tested positive for the presence of blood. The areas reacting to the Luminol were the back of the Mr. Johnston’s shirt, his sleeves, his waistband, the front of his shorts, the back pocket area of his shorts, and his right shoe (R. 648-49). The officer admitted the test was not conclusive and can give false positives
(R. 651-53).
Blood spatter is the type of evidence that is listed as
suspect within the study conducted by the National Academy of
Sciences. The study relates:
However, many sources of variability arise with the production of bloodstain patterns, and their interpretation is not nearly as straightforward as the process implies. Interpreting and integrating bloodstain patterns into a reconstruction requires, at a minimum:
* an appropriate scientific education;* knowledge of the terminology employed(e.g., angle of impact, arterialspurting, back spatter, castoffpattern);* an understanding of limitations of the measurement tools used to make bloodstain pattern measurements (e.g.,calculators, software, lasers,protractors);* an understanding of applied mathematics and the use of significant figures;* an understanding of the physics of fluid transfer;* an understanding of pathology of wounds;and * an understanding of the general patterns blood makes after leaving the human body.
Strengthening Forensic Science in the United State: A Path
Forward, http://www.nap.edu/catalog/12589.html, Prepublication
Copy, at 5-38.
None of these potential sources of variability were explored
in Mr. Johnston’s case, including the fact Investigator Dupius
received virtually no meaningful instruction in this complex
science. Mere conclusory allegations were made with no
meaningful cross-examination or adversarial testing. The reliability necessary to sustain the conviction and impending execution is clearly lacking.
Gene Hietchew testified that fourteen latent prints had been lifted at the crime scene of which four were usable (R. 681). The prints did not match Mary Hammond, Kevin Williams, or David Johnston (R. 682). However, the police failed to compare the prints of Jose Gutierrez who had been observed within hours of the crime sitting in the driveway looking as if he were spoiling for a fight.
The State also had Terrel Kingery testify regarding pattern evidence relating to Mr. Johnston’s shoes (R. 740-52). He received plaster casts, a pair of shoes, and photographs of shoe tracks, among other things (R. 742). Subsequently, he compared the prints and expressed the opinion that Mr. Johnston’s left shoe could have made the print (R. 745). Kingery described the process he utilized as inking the shoes, putting the shoes on his feet (not the same size as Mr. Johnston) and then personally making the prints. He admitted the shoes had already been tested for blood and that he did not use the same soil as that at the crime scene.
Within the National Academy of Sciences report footwear pattern evidence is specifically discussed. “Class characteristics of footwear and tires result from repetitive
controlled processes that are typically mechanical, such as those used to manufacture items in quantity. Although defined similarly by various authors, Bodziak describes footwear class characteristics as ‘an intentional or unavoidable characteristic that repeats during the manufacturing process and is shared by one or more other shoes.’” (footnote omitted), Strengthening Forensic Science in the United State: A Path Forward, http://www.nap.edu/catalog/12589.html, Prepublication Copy, at 5
15.
The study goes on to consider individual wear characteristics by stating, “For footwear, Bodziak writes that ‘individual identifying characteristics are characteristics that result when something is randomly added to or taken away from a shoe outsole that either causes or contributes to making that shoe outsole unique.’” (footnote omitted), Id.
In Mr. Johnston’s case these differences and methods of interpretation were either not used or not brought out in testimony. Simply testifying to a match is not enough. The aforementioned guidelines must be adhered to in order to provide the kind of reliability required to convict and execute a man.
The report further calls into question the terminology used to describe testing results. Many terms that are utilized to describe the degrees of association between evidentiary material and particular people or objects, e.g., “match,” “consistent
with,” “identical,” “similar in all respects tested,” and cannot
be excluded as the source of.” Id. at S-15. The Committee
concluded that “[t]he use of such terms can and does have a
profound effect on how the trier of fact in a criminal or civil
matter perceives and evaluates scientific evidence.” Id.
When analyzing the significant advances in DNA technology
and its immense importance to law enforcement to law enforcement
the Committee observed that DNA advances have:
revealed that, in some cases, substantive information and testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people. This fact has demonstrated the potential danger of giving undue weight to evidence and testimony derived from imperfect testing and analysis. Moreover, imprecise or exaggerated expert testimony has sometimes contributed to the admission of erroneous or misleading evidence. NAS Report at S
13. The information, analysis, and ultimate conclusions contained in the NAS Report reveal that “scientific” evidence produced by methods with questionable and untested underlying scientific principles is being used to convict defendants.
The use of this questionable “scientific” evidence, coupled with the utter lack of standardized reporting and terminology in forensic disciplines renders both the conviction as well as the death sentence unreliable. Under the Eighth Amendment, the death penalty must be imposed fairly, and with reasonable consistency, or not at all. Furman v. Georgia, 408 U.S. 238, 310 (1972)(per
curiam). Furman stands for the proposition most succinctly explained by Justice Stewart in his concurring opinion: “The Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be . . . wantonly and . . . freakishly imposed” on a “capriciously selected random handful” of individuals. Id. at 310 (Stewart, J. concurring). Differences in terminology, for example, could mean the difference between life and death: two experts in the same field of forensic science may testify in two different cases and use differing terminology to describe the same results so that one defendant is convicted or sentenced to death on the basis of that evidence and the other is not. The imposition and carrying out of the death penalty in cases in which untested and unreliable “scientific” evidence is used to convict defendants also constitutes cruel and unusual punishment. When the myriad of problems with so-called “scientific” evidence are considered together in analyzing its ability to produce a reliable result, the conclusion is inescapable: as Justice Brennan wrote in his concurring opinion in Furman, “it smacks of little more than a lottery system.” Furman, 408 U.S. at 293 (Brennan, J., concurring). The use of “scientific” evidence produced by methods of questionable and untested underlying scientific principles cannot “assure consistency, fairness, and rationality” and cannot “assure that sentences of death will not
be ‘wantonly’ or ‘freakishly’ imposed.” Proffitt v. Florida, 428
U.S. 242, 259-260 (1976).
Mr. Johnston submits that this issue should be remanded for an evidentiary hearing and thereafter, Rule 3.851 relief should issue.
ARGUMENT III
THE TRIAL COURT ERRED IN DENYING MR. JOHNSTON’S REQUEST
FOR FORENSIC TESTING RESULTING IN A VIOLATION OF MR.
JOHNSTON’S RIGHTS TO DUE PROCESS UNDER BOTH THE U.S.
AND FLORIDA CONSTITUTIONS.
Mr. Johnston was charged with the murder of Mary Hammond and convicted and sentenced to death in June 1, 1984. Numerous articles of evidence were collected and tested by the State of Florida. At trial, the State introduced numerous items of evidence and adduced expert testimony regarding the evidence.
Officer Ostermeyer testified regarding blood evidence supposedly upon Mr. Johnston’s clothing (R. 641-44). He completed presumptive testing and found Mr. Johnston’s clothing tested positive for the presence of blood. The areas reacting to the Luminol were the back of the Defendant’s shirt, his sleeves, his waistband, the front of his shorts, the back pocket area of his shorts, and his right shoe (R. 648-49). The officer admitted the test was not conclusive and gives false positives (R. 65153).
Gene Hietchew testified that fourteen latent prints had been
lifted at the crime scene of which four were usable (R. 681). The prints did not match Mary Hammond, Kevin Williams, or David Johnston (R. 682). However, the police failed to compare the prints of Jose Gutierrez who had been observed within hours of the crime sitting in the driveway looking as if he were spoiling for a fight.
The State also had Terrel Kingery testify regarding pattern evidence relating to Mr. Johnston’s shoes (R. 740-52). He received plaster casts, a pair of shoes, photographs of shoe tracks, among other things (R. 742). Subsequently, he compared the prints and expressed the opinion that Mr. Johnston’s left shoe could have made the print (R. 745). Kingery described the process he utilized as inking the shoes, putting the shoes on his feet (not the same size as Mr. Johnston) and then personally making the prints. He admitted the shoes had already been tested for blood and that he did not use the same soil as that at the crime scene.
Mr. Johnston has had numerous attorneys over the years and been effectively without counsel for the last couple of years. None of these attorneys did any independent testing. Indeed, many of the testing procedures available now did not exist during the time period when many of these attorneys represented Mr. Johnston or the science and protocols have since progressed to allow a greater degree of reliability. See, Claim II, supra.
When considered in conjunction with the newly discovered evidence claim that the testing procedures used in capital cases such as Mr. Johnston’s have been exposed as often times fraught with error, it becomes glaringly apparent that Mr. Johnston’s case requires an independent forensic review of the evidence in by his own forensic experts.
The trial court clearly erred when it found that, “As this Court concluded in the Order Denying Motion for Postconviction DNA Testing, there is no reasonable probability that the results of additional forensic testing would exonerate Mr. Johnston of the crime.” Order Denying Motion to Produce Evidence for Forensic Testing and Request for Hearing at 1.
The forensic evidence in this case was circumstantial in nature.16 Mr. Johnston has always maintained his innocence in this case. Mr. Johnston’s postconviction forensic experts will review the facts and evidence in this case and conduct forensic testing to utilize the most modern testing and science to ascertain the validity of the prior testing conducted 25 years ago. Additional testing of the evidence listed above is critical to Mr. Johnston’s claim of innocence, and would in no way harm the State. It would be a violation of due process for Mr. Johnston to be denied access to independent forensic testing in
16 Mr. Johnston adopts and re-alleges the argument regarding the exculpatory nature of the proposed testing as argued in ClaimI, supra.
this case.
The U.S. Court of Appeals for the Ninth Circuit recently
found that a state prisoner has a right to postconviction access
to biological evidence used to convict him. Osborne v. District
Attorney’s Office, 521 F.3d 1118 (9th Cir. 2008), cert.granted,
(currently pending) District Attorney’s Office v. Osborne (U.S.
Sup. Ct., Case No. 08-6). The biological evidence in Osborne
related to DNA testing and was the subject of a civil rights
action filed pursuant to §1983. The State of Alaska had blocked
Osborne’s access to DNA testing.17 In granting Osborne access to
the biological evidence the Ninth Circuit observed that:
The evidence in question can be produced easily and without cost to the State and, if favorable to Osborne, would be strong evidence in support of post-conviction relief. Nonetheless, the State seeks to foreclose such relief by its simple refusal to open the evidence locker . . .
The State supports its position with the argument that the circumstantial and eyewitness evidence in this case is also strong evidence of Osborne’s guilt, and thus granting access is not likely to “further the truthseeking function of our criminal justice system.” As recent history has shown, however, DNA evidence has the capability of refuting otherwise irrefutable inculpatory evidence, and as we have already established this case is no exception.
If the inculpatory evidence has been correctly interpreted, further DNA testing will confirm that Osborne is guilty as charged and convicted. But it remains a very real possibility that further DNAtesting will be exculpatory and may even lead to
17 Mr. Johnston adopts the due process argument within this claim as if fully argued in Claim I as well.
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Osborne’s exoneration. In the former case, the State will have lost nothing; indeed, it will gain even more definitive proof of Osborne’s guilt and will be relieved of the burden of further post-conviction litigation. In the latter case, however, Osborne will obviously gain a great deal, as will the State, whose paramount interests are in seeking justice, not obtaining convictions at all costs, and which will then have strong evidence for use in catching and punishing the real perpetrator. Importantly, the State is prejudiced in neither case, and the truth-seeking function of the criminal justice system is furthered in either case. Osborne at 1141.
Osborne, 521 F.3d at 1141. The same holds true in Mr. Johnston’s
case. The minimal amount of time required for DNA and forensic
testing relative to the twenty-six years Mr. Johnston has spent
on Florida’s death row does little, if anything, to prejudice the
State of Florida. However, this requested testing, if the
results are exculpatory, has the potential to save Mr. Johnston’s
life. Clearly, the requested testing should be allowed and
relief should issue.
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