Less than "effective assistance of counsel" is a violation of the defendant's Sixth Amendment rights.

Michael Dewayne Johnson
Texas Death Row
Scheduled for Execution on October 19, 2006
For a Crime to Which Someone Else has Already Confessed





Introduction

Facts of the Case

Co-Defendant's Confession & Testimony

Prosecutorial Misconduct & Ineffective Assistance of Counsel

Legal Documents & Analysis

Texas Wrongful Executions & Other Miscarriages of Justice

Contact Information

Ways to Help


Prosecutorial Misconduct and Ineffective Assistance of Counsel

The law is most assuredly complicated, but no matter how complicated it is, it has to be fair.

The 14th Amendment to the Constitution of the United States of America expressly provides that "No State shall ... deprive any person of life ... without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." In other words, the State of Texas must first provide any and all criminal defendants a fair trial before punishment. In other words, the State of Texas is prohibited from executing Michael Johnson unless the State of Texas first provided him a fair trial.

When the prosecution violates it's duty to provide a defendant a fair trial, then that's prosecutorial misconduct.

There are two well defined legal issues that make Michael Johnson's conviction and death sentence unfair: 1) the prosecution didn't disclose all of the material information in it's possession that could have helped Michael Johnson defend himself at trial, and 2) the prosecution presented false material evidence to the court. Even if the prosecution didn't know the material evidence was false at the time, then the prosecution was obligated to correct the error as soon as it learned the evidence was false.

Evidence is considered material "if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different." U.S. Supreme Court Case Kyles v. Whitley (1995) 514 U.S. 419. In particular, David Vest's Confession was materical because there was a reasonable probability that either Michael Johnson wouldn't have been convicted or wouldn't have been sentenced to death. After all, David Vest was the only other witness to the crime. Clearly his testimony outweighed all of the other evidence against Michael Johnson.

This first legal issue is commonly called a Brady issue. It's named after U.S. Supreme Court case BRADY v. MARYLAND, 373 U.S. 83 (1963). "Suppression by the prosecution of evidence favorable to an accused who has requested it violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Furthermore, the U.S. Supreme Court subsequently ruled that material evidence favorable to the accused must be revealed even if the accused doesn't ask for it.

Interetesting, Brady's case involved the suppressed confession of his co-defendant. The State of Maryland prosecuted Brady and a companion, Boblit, for capital murder. Brady admitted involvement, but claimed Boblit had done the actual killing. The prosecution withheld Boblit's sworn statement, confessing that he had committed the murder by himself. Thus, Brady was deprived a fair trial because the prosecution prevented him from showing to the jury that his conduct did not meet the definition of capital murder, although it did meet the definition of murder.

This is surprisingly similar to Michael Johnson's case. In Brady co-defendant Boblit confessed that he committed the murder by himself, but the prosecution withheld Boblit's confession from Brady and Brady's attorneys. In Johnson's case, co-fedendant Vest confessed that he committed the murder by himself, but the prosecution withheld Vest's convession from Michael Johnson and Michael Johnson's attorneys.

This second legal issue is commonly called a Giglio issue. It's named after U.S. Supreme Court case GIGLIO v. UNITED STATES, 405 U.S. 150 (1972). Giglio is similar to Brady. It also deals with suppression of material evidence, but it's more about the presentation of false evidence to the court. That the prosecution may not present false evidence to the court, and even if the presentation of false evidence is unknowing, made in good faith, the prosection must immediately so alert the court and the opposing counsel when it's learned that the evidence is, in fact, false.

In Giglio, defense counsel asked a witness on cross-examination if there were any promises of leniency. The witness falsely answered no, and the prosecution did nothing to correct the witness's false answer. Even though the trial prosecutor was unaware of the state's promise for leniency, Giglio was deprived a fair trial. It was the State's responsibility on the whole to keep the witness from presenting false evidence to the court, even if the trial prosecutor himself was unaware of the promise of leniency. In sum, the jury didn't get to learn of evidence that affected the witness's credibility, and that deprived Giglio of a fair trial.

In Michael Johnson's case, the McLennan County District Attorney's Office deprived Johnson and his attorney material favoral evidence, and it also presented false evidence to the court without correcting it.

Regarding Brady, first, Crawford Long, the First Assistant District Attorney of McLennan County, Texas admits that Vest's Confession was not disclosed to Johnson or his attorneys. [Crawford Long's Affidavit] Long swore that he did not consider Vest's Confession exculpatory: "The stipulation was not exculpatory". NOTE: Vest's Judicial Confession was contained in the stipulation. [See page 3 of Long's affidavit, the third from the last paragraph.]

Also, clearly, Vest's confession would have been favorable to Johnson at trial. As soon as Vest testified that Michael Johnson shot Jeffrey Wetterman, then Johnson's attorneys could have immediately confronted Vest with his confession. "Mr. Vest, I have in front of me your sworn statement that you shot Mr. Wetterman. On February 29th you swore that you shot Mr. Wetterman. Now you reverse yourself and say that you didn't shoot Mr. Wetterman. Do you understand that you were obligated to tell the truth in your Judicial Confession, and that you're obligated to tell the truth now. Obviously, one of these sworn statements is a lie. How do you explain this?"

NOTE: it is undisputed that there was only one gun at the crime scene and only one shot was fired. It is undisputed that there was only one gunman, and there could only have been one gunman. When Vest confessed to having shot Mr. Wetterman, then that proved that Michael Johnson didn't shoot Mr. Wetterman.

Regarding Giglio, clearly the McLennan County District Attorney's Office knew that Vest has signed the February 29, 1996 Judicial Confession. There's no doubt that the McLennan County District Attorney's Office knew exactly what was in Vest's Judicial Confession, for the McLennan County District Attorney's Office most assuredly authored Vest's Confession. Also, Assistant District Attorney Mike Freeman signed off on it. That's undisputed. Mike Freeman's signature is part of David Vest's Judicial Confession. Obviously, the McLennan County District Attorney's Office knowingly presented false information to the court when it allowed David Vest to testify that Michael Johnson shot Jeffrey Wetterman.

Moreover, the State of Texas cannot accept a plea of guilty unless there is also evidence presented to the court that shows the defendant is actually guilty. Usually this evidence is in the form of the defendant's formal sworn confession. More importantly, the evidence presented in support of a guilty plea must then be accepted by the court as the basis for its judgment of guilty. That is, when the State of Texas accepts a plea of guilty, it is required by law to accept the evidence proving guilt as true and correct. In other words, when the State of Texas accepted David Vest's plea of guilty on February 29, 1996, then State of Texas accepted David Vest's Judicial Confession as true and correct on February 29, 1996.

On February 29, 1996 the State of Texas accepted as fact that on September 10, 1995 David Vest shot Michael Johnson. Ergo, it is direct and unequivocal that the State of Texas presented false evidence when David Vest testified the Michael Johnson shot Jeffrey Wetterman. It is direct and unequivocal that the State of Texas used false evidence to get Michael Johnson convicted and sentenced to death.

In sum, the McLennan County District Attorney's Office admitedly withheld Vest's confession for Michael Johnson. That's a Brady violation. The McLennan County District Attorney's Office knowingly allowed false evidence to be presented to the court. That's a Giglio violation. Each is prosecutorial misconduct.

It's interesting how the State of Texas tries to justify this. The State of Texas argues that the Texas Law of Parties (Texas Penal Code Sections 7.01 and 7.02) allowed the McLennan County District Attorney's Office to present false information to the court.

The Texas Law of Parties, Section 7.01 of the Texas Penal Code, is as follows:

(a) A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.

(b) Each party to an offense may be charged with commission of the offense.

(c) All traditional distinctions between accomplices and principals are abolished by this section, and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice.

The purpose of the Law of Parties is to facilitate indictments and jury charges. It does not give witnesses permission to lie under oath. It does not give prosecutors permission to present false sworn evidence to the court. It does not give prosecutors permission to suppress favorable material evidence from the defendant.

It's well understood in the United States that an accomplice is just a guilty as the principal if intent of the principal and the accomplice are the same. For example, three men conspire to rob a bank. Two enter the bank and the third waits outside in the getaway car. The plan is for the two who enter the bank to kill the bank's security guard, take the money then leave. The getaway driver is just as guilty because he knew that the other two were armed and planned to kill the security guard.

The Texas Law of Parties comes in if after the three are apprehended and arrested, they refuse to say who entered the bank, who fired the fatal shot and who stayed in the car. Per the Texas Law of Parties the State need not allege in the indictment who actually fired the fatal shot, nor who stayed in the car. Likewise, when the judge issues the jury charge, the jury charge need not instruction the jury to find who fired the fatal shot, or who stayed in the car to convict each of capital murder. If the state proves beyond a reasonable doubt than the defendant participated in the bank robbery, then that person is guilty. The prosecution doesn't need to prove exactly how the defendant participated. The jury just needs to find that the defendant was one of the three bank robbers.

However, the Texas Law of Parties does not allow the prosection to present false information to the court. When a witness testifies "he was the shooter", the issue isn't that there's no distinction between principal and accomplice, the issue is the truth. Sworn testimony of "He was the shooter" is not the same as, and cannot be considered the same as, "I was the shooter". The jury, of course, as the duty to determine whether the testimony was true or not. But the Texas Law of Parties does not give the jury the privilege to substitute freely "I was the shooter" evidence with "He was the shooter" evidence.

Likewise, the McLennan County District Attorney's Office did not have the privilege to think that when David Vest signed his Judicial Confession swearing under oath that he shot Jeffery Wetterman, that Vest's Confession really meant Michael Johnson shot Jeffery Wetterman.

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The corrolary to the McLennan County District Attorney's Office prosecutorial misconduct, is that Michael Johnson's attorneys should have looked for David Vest's confession anyway.

Regarding appointment of counsel at a criminal trial, the Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." The U.S. Supreme Court made this applicable to criminal defendants in state trials in Gideon v. Wainwright, 372 U.S. 335 (1963). Furthermore, the U.S. Supreme Court has ruled that "assistance of counsel" means "effective assistance of cousel". That the attorney must provide the defendant a minimal level of legal professionalism. Less than "effective assistance of counsel" is a violation of the defendant's Sixth Amendment rights.

Trial Attorney Dwight Goains and Robert Swanton did make requests for information from the McLennan District Attorney's Office. And those requests, albeit general requests - i.e. "any and all written or recorded statements concerning this case by any persons who are prospective prosecution witnesses" - clearly included David Vest's Confession.

However, Goains and Swanton should have known that David Vest had signed a Judicial Confession. They should have noticed that the McLennan County District Attorney's Office had not disclosed Vest's Confession, and they should have specifically asked for it.

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However, the reason why the U.S. District Court and the U.S. Court of Appeals for the Fifth Circuit denied Michael Johnson habeas relief was purely procedural. The 1996 Antiterrorism and Effective Death Penalty Act makes it extremely difficult for a person on Death Row to make a second round of federal appeals.

Specifically before the appeals courts will even consider the merits of a successor federal habeas appeal, the following conditions must be satisfied.

1. The factual predicate for the claim could not have been discovered previously through the exercise of due diligence, and

2. the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

In Michael Johnson's case, the U.S. District Court ruled that Michael Johnson or his attorneys should have found Vest's Confession in time to have included it in Johnson's first federal habeas appeal. And the U.S. Court of Appeals for the Fifth Circuit and the U.S. Supreme Court agreed. Thus, the courts never really considered Johnson's Brady claim or Giglio Claim.

However, U.S. Supreme Court held in Mooney v. Holohan, 294 U.S. 103 (1935), that the Fourteenth Amendment cannot under any circumstances tolerate a state criminal conviction obtained by the knowing use of false evidence. Sadly, the U.S. Supreme Court is deviating and retreating from that establish principle now.