Johnson v. Gentry

          MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS

          HONORABLE CANDY W. DALE UNITED STATES MAGISTRATE JUDGE.

         Petitioner Sarah Johnson (Sarah) is proceeding on her Amended Petition for Writ of Habeas Corpus. (Dkts. 8, 8-1.) Pending before the Court is Respondent Amanda Gentry’s Motion for Partial Summary Dismissal and Sarah’s Motion for Limited Discovery. (Dkts. 16, 20, 19.) In addition, Attorney Dennis Benjamin and Deborah Whipple, pro bono counsel, have appeared on behalf of Sarah to seek appointment of counsel to aid her in discovery. Other procedural motions are also pending.

         Having reviewed the record and considered the argument of the parties, the Court enters the following Order.

         SUMMARY OF DECISION

         At age 16 (while still a minor child under the laws of Idaho), Sarah was convicted of shooting her parents to death in a criminal case in Blaine County, Idaho. The state district court sentenced Sarah to two fixed life sentences without the possibility of parole, as well as a statutory firearm enhancement of 15 years. Sarah is now 32 years old and has completed the firearm enhancement sentence, having served 16 years in prison in the custody of the Idaho Department of Correction (IDOC).

         In recent years, the United States Supreme Court has sent a strong message to state and federal district courts to carefully scrutinize cases involving youthful offenders serving harsh sentences. See Miller v. Alabama, 132 S.Ct. 2455 (2012) (mandatory life without parole for juvenile homicide offenders violates the Eighth Amendment’s prohibition on cruel and unusual punishments); Montgomery v. Louisiana, 136 S.Ct. 718 (2016) (Miller holding is retroactive and binding on the states). This Court has, and will continue to, review Sarah’s case with an added measure of scrutiny in accordance with this charge from the United States Supreme Court.

         After a long and detailed review of the state court record and consideration of the parties’ arguments, the Court is convinced that Sarah shot her parents. The Court will not permit discovery because no “miscarriage of justice” will occur in keeping Sarah imprisoned for her crimes because she is not actually innocent. However, because this case warrants extra scrutiny, the Court will appoint Dennis Benjamin prospectively as counsel for Sarah at public expense to aid in briefing of the remaining claims.

         The Court will conditionally grant Respondent’s Motion for Partial Summary Dismissal on Claims One, Three, Four, Five, and Six on procedural default grounds, and alternatively deny Claims One and Six on their obvious lack of merit. The Court will consider the merits of the remaining procedurally defaulted claims-Three, Four, and Five-after briefing by the parties.

         BACKGROUND

         Alan Johnson (Alan) and Diane Johnson (Diane) were shot to death in their Bellevue, Idaho home between 6:20 and 7:00 a.m. on Tuesday, September 2, 2003. (State’s Lodgings A-16, H-8.) Sixteen-year-old Sarah and her parents were the only ones home. (Id.) Sarah’s older brother, Matthew Johnson (Matthew), was away at college at the University of Idaho, about a day’s journey from home, when his fiancée called him and said his parents had been shot. (State’s Lodging A-19, pp. 4540-41.)

         Alan and Diane’s bedroom door was found propped open with two pillows. (State’s Lodging A-15, p. 2022.) They often did that during hot months because, otherwise “the wind would create a suction in the house, or a vacuum, and slam the doors.” (State’s Lodging A-19, p. 4547.) To help the air circulation, they would also leave the sliding glass doors in their bedroom and downstairs off the living room open at night. (Id., p. 4548.)

         Diane was found lying face-up in her bed with a comforter covering her body and tucked around her head. (State’s Lodgings A-15, pp. 1794-95; A-20, pp. 5220-24.) She had been killed instantly in her sleep by one point-blank shot to the head with a .264 caliber high-power rifle. (State’s Lodging A-16, pp. 2310-17.) With the bullet traveling about 3600 feet per second, the single shot shattered her skull and brain. (Id. p. 2311.) When investigating officers lifted the comforter, Diane’s head was missing from her chin up. (State’s Lodging A-15, p. 1795.) Blood, skin, hair, brain tissue, and bone fragments spattered across the ceiling and walls, into the hallway, and onto the wall of Sarah’s bedroom directly across the hall. (State’s Lodgings A-15, A-16.) From the spatter pattern, Detective Stuart Robinson (Detective Robinson) testified that the shooter had stood on the east side of the bedroom, because the blood “basically [went] straight up, and it [came] out to the west.” (Id., p. 2024.) Expert Rod Engle agreed that “the event occurred at the east side of the room, projecting all the blood … towards the west and somewhat towards the north.” (State’s Lodging A-18, p. 4141.)

         Alan was shot as he emerged from the shower. The shot went through his left lung. Forensic pathologist Dr. Glen Groben opined that Alan bled to death from that wound over the course of several minutes. (State’s Lodging A-16, p. 2304.) From the blood pattern on the floor, experts determined that Alan had managed to walk over to Diane’s bedside before he collapsed and died. (Id., pp. 2320-21; State’s Lodging A-18, pp. 4145-49.) Alan was found lying face down between the nightstand and bed. (State’s Lodging A-15, p. 1662.)

         Many of the neighbors heard the shots that early Tuesday morning. (State’s Lodgings A-15, p. 1520; A-16, generally.) Several neighbors testified that two shots were fired within a few minutes, with the second shot being louder than the first (State’s Lodging A-16, pp. 2630, 2636.) Shortly after the shots, neighbors heard a female-later identified as Sarah-outside screaming that “someone had shot her dad” and “someone had shot her parents.” (State’s Lodgings A-15, p. 1518; A-16, p. 2631.) Sarah sought refuge at a neighbor’s house. People who came to help and comfort Sarah puzzled over why her hair was neatly fixed and her casual clothing did not look as though it had been slept upon. (State’s Lodgings A-15, pp. 1522-23, 1545-47, 1559-60, 1578-79; A-16, pp. 2520-21.)

         As police investigators arrived at the scene that early morning, they realized it was trash day, and pulled the Johnsons’ two trash cans back from the curb. One was filled with yard debris. The other contained Sarah’s pink bathrobe, covered in blood spatter, wrapped around a left-hand women’s leather glove and a latex glove. (State’s Lodging A-15, pp. 1893-95.)

         The left-hand leather glove had no blood on it. Some experts believe it may not have been worn during the shooting because of the lack of blood spatter. However, the glove tested positive for gunshot residue. (State’s Lodgings A-20, pp. 5289, 5290; A-18, pp. 3592-96.) The latex glove was so old it was discolored. (State’s Lodging A-17, p. 3110.)

         Matthew identified the leather glove as being from the set Diane kept in her car in the garage-Diane and Sarah had worn them at football games, and Diane sometimes wore them when driving. The Johnsons owned multiple first aid kits containing latex gloves, including in Diane’s car, Alan’s truck, the garage, Alan’s bathroom, and Matthew’s bathroom. (State’s Lodging A-19, pp. 4572-75.) When tested, the latex glove found in the garbage can had Sarah’s DNA and an unknown person’s DNA on the inside of it, but had no blood on the outside of it. Like the left-hand leather glove, the latex glove also had gunshot residue on it.

         The guest house located over the Johnsons’ garage occupies a prominent place in the story. About a year earlier, Alan and Diane had rented the guest house to Alan’s friend, Mel Speegle (Mel), who usually spent Monday through Friday there for a local construction job, and the weekends in Boise, where he and his wife owned a house. On Labor Day weekend just before the shootings, Mel decided to spend the holiday with his wife in Boise, rather than return to the guest house. (State’s Lodging A-16, pp. 2686-94.)

         Before moving into the guest house, Mel had inherited several guns when his father passed away, and Mel had kept them at a ranch. Mel’s friend, Christopher Hill (Christopher) was the ranch caretaker. Mel eventually sold the ranch, and Christopher helped Mel move into the guest house. There, Mel stored the unlocked guns in his closet under some clothes. Mel kept the door to the guest house locked when he was away. (State’s Lodging A-16, pp. 2692, 2702-09.)

         Sarah knew Mel was gone that long weekend, and she had a key to the guest house. The key was found on a small table in Sarah’s bedroom on the day of the murders. (State’s Lodging A-15, p. 2037.) Sarah was familiar with Mel’s place, had cleaned it for him on earlier occasions, and had also entertained her friends there from time to time. (State’s Lodging A-16, p. 2689.)

         The Labor Day weekend brought Diane’s sister, Linda Vavold, for a visit to the Johnsons’ house. Linda observed that Sarah had spent time in the guest house. Sarah had said she was studying. School had started only four days earlier. Linda testified that when she saw Sarah go to the guest house, Sarah was not carrying books or a backpack. (State’s Lodging A-17, pp. 3335-56.)

         On the day of the shootings, investigators found four different types of ammunition and three guns at the Johnsons’ property. Included in the collection of inherited guns kept unlocked in Mel’s closet was the .264 caliber high-power rifle used to kill Alan and Diane, along with a box of .264 bullets. That gun was found in Alan and Diane’s bedroom. Two unused .264 bullets were found in Sarah’s room on a nightstand. (State’s Lodging A-15, pp. 2039-40.) A spent .264 shell casing was found in the garage. (Id., pp. 2051-53.)

         Mel also kept an unlocked .22 caliber bolt-action long rifle in his guest house closet. During investigation of the shootings, Officer Raul Ornelas found Mel’s .22 rifle on a chest freezer in the garage. (State’s Lodging A-15, pp. 1729-31.) It was not used in the shootings.

         Investigators also found a box of Remington .25 caliber bullets with five missing bullets on an upright freezer in the garage. Five .25 bullets were found in the pink robe’s pocket. (State’s Lodging A-15, 1900.). While .22 and .25 bullets look somewhat similar, they are not interchangeable, and the .25 rounds in the robe pocket, taken from the box of .25 ammunition found in the garage, would not have fit into the .22 rifle left on the freezer. (State’s Lodging A-15, p. 2050). Investigators theorized that the unanticipated mismatch was the reason the shooter left the .22 rifle unused in the garage and the .25 bullets in the robe pocket and opted for the .264 rifle.

         Alan owned a 9 millimeter handgun, which was found locked in a gun safe in the garage under the guest house. (State’s Lodging A-15, pp. 2061.) A handgun magazine containing six unused 9 millimeter bullets was found wrapped in a red bandana on the bottom shelf of a nightstand in Sarah’s bedroom. (Id., pp. 2038-2040.) The 9 millimeter magazine found in Sarah’s room appeared to fit the 9 millimeter handgun in the safe. (Id., p. 2062.) The weekend before the shootings, Linda heard Sarah ask Diane for the key to the gun safe. (State’s Lodging A-17, p. 3336.) Diane had told Sarah to ask her dad. (Id., p. 3336.) Investigators also theorized that the 9 millimeter handgun was the shooter’s original weapon of choice, but it simply was unavailable at the time of the shootings.

         Mitch Marcroft, who was the secretary of the Blaine County Gun Club from 2001 to 2004, testified that Alan and Diane were members of the gun club, made up of trap shooting enthusiasts. Mitch first saw Sarah at the gun club when she was about 13; she came with her father quite often. Mitch had not observed Sarah shooting rifles, but he observed her shooting a shotgun at the Miller Fun Shoot in 2002. (State’s Lodging A-18, pp. 3664-3666.)

         Sarah was right-handed, but on the day of the shootings, medical investigators examined her and found several parallel linear bruise marks on her left shoulder that could have been made from a rifle recoil. (State’s Lodging A-16, pp. 2248-49.) Another person later testified at the post-conviction hearing that the .264 gun “kicked really hard.” (State’s Lodging E-9, p. 967.) Sarah explained the bruises away by saying that she had fallen and hit her shoulder on a table on Friday before the Tuesday shootings. (State’s Lodging A-16, p. 2444.)

         Quite a bit of additional evidence was found at the scene of the crime. The robe had dried paint residue on the inside of it; the T-shirt Sarah wore on the morning of the murders had matching dried paint residue. (State’s Lodging A-18, pp. 3602-3610.) The robe also had gunshot residue on it. (State’s Lodging A-17, pp. 3231-38.)

         A woman’s right-hand leather glove that matched the left one found in the garbage can was sitting on a table in Sarah’s room along the west wall. This glove had gunshot residue and Sarah’s DNA on it, but it did not have the victims’ blood on it. (State’s Lodgings A-15, pp. 2034-2036; A-17, p. 3240.)

         Diane’s blood and brain matter were found in Sarah’s room. A piece of metal bullet shaving and body tissue were removed from the door jamb of Sarah’s bedroom door. All of this indicated that Sarah’s bedroom door and her parents’ bedroom door were open when the shots were fired. (State’s Lodging A-15, pp. 2043-44.)

         Two kitchen butcher knives were found on the floor at the foot of Diane’s bed, and one knife was found at the foot of the guest room bed, where Matthew stayed when he was home from college. Investigators determined that the knives were not instruments of the crime. (Id., pp. 2411-2414.) All of the knives came from the Johnsons’ kitchen. (Id., p. 2414.)

         Investigators were baffled by the placement of the knives in the bedrooms. Sarah suggested to Sheriff Jerry Femling (Sheriff Femling) that the knives could be a gang sign that she or her brother were “marked.” (State’s Lodging A-16, p. 2450.) Detective Robinson then investigated whether the knives were gang-related. Robinson spoke to a Boise gang unit detective and a Salt Lake City detective, and neither had ever heard of anything similar regarding how and where the knives were placed at the scene of the crime. (Id., pp. 2120-21.)

         Officer Raul Ornelas saw two or three sets of human footprints in the matted grass in the backyard going northeast from the house to the back of the guest house. (State’s Lodging A-15, p. 1736.) Investigators noted that the path Sarah took to get to her neighbors’ house went right by the trash cans. (State’s Lodging E-7, p. 284.)

         A key figure in this story is Sarah’s boyfriend, Bruno Santos (Bruno), a 19-year-old undocumented Mexican immigrant and high school dropout. They had been dating for about three months at the time of the murders. Bruno and Sarah had engaged in sexual intercourse and had exchanged “promise” rings. (State’s Lodging A-16, p. 2440.) Sarah told several people that she and Bruno were engaged to be married, but she told investigators that she was not. (Compare State’s Lodging A-18, pp. 3786, 3795, 3833-34, 3844, 3849 with State’s Lodging A-16, p. 2440.) Sarah revealed to investigators that her parents were not happy with her relationship with Bruno. (State’s Lodging A-16, p. 2440.) Alan had told Sarah that Bruno “was a waste, [and] that he did not want her to see him.” (Id.)

         On the day of the shootings, Bruno claims that he was at home sleeping on a mattress in the living room of his family’s apartment when Jane Lopez, his adult female cousin who worked at the high school, called him to say that a school administrator had just made an announcement that Sarah’s parents had been killed. (State’s Lodging A-16, pp. 2764-65, 2789-2793.) She told Bruno to stay home, but Bruno wanted to go to the scene to find out for himself what had happened. (Id., pp. 2765-66, 2793.)

         When Bruno arrived at the scene, he gave investigators permission to search his car. (State’s Lodging A-16, p. 2766.) Later, pursuant to a warrant, Bruno gave DNA samples at the hospital, surrendered the clothing he was wearing, and had his home searched. (Id., pp. 2766-67.) A witness noticed that, when Sarah approached Bruno to hug him at the hospital where they were both providing DNA samples to determine whether they were involved in the shootings, Bruno did not return Sarah’s embrace, but stood very straight, his arms at his side, showing no emotion toward her. (State’s Lodging A-18, p. 3628.) Bruno was cleared as a suspect and called as a State’s witness at trial.

         Beyond the physical evidence at the crime scene, investigators learned that Sarah and her mother had had a rocky relationship for several years, and that the shootings took place on the heels of several contentious incidents between Sarah and her parents over Bruno.

         The evidence at trial showed that Sarah argued and fought with her mother often. (State’s Lodging A-19, pp. 4521-23.) The fighting included physical altercations. (Id.) A neighbor, Dorothy Schinella (Dorothy), testified that Sarah said “that she absolutely could not stand her mother.” (State’s Lodging A-16, pp. 2507-08.) Dorothy testified that, a year before the shootings, she heard Diane weeping in the backyard, Sarah yelling in the house, and Alan saying to Sarah, “You go out there and you apologize to your mom.” (Id., pp. 2508-09.) Several months before his death, Alan had told Dorothy that Sarah treated Diane in a mean and ungrateful manner, even though Diane did many kind things for Sarah. (State’s Lodging A-16, pp. 2549-50.) A fellow jail inmate testified at trial that Sarah “thought her mom was a bitch.” (State’s Lodging A-18, p. 3847.)

         In the weeks before their deaths, Diane and Alan had forbidden Bruno from attending a family wedding at their house, which made Sarah upset. (Id., pp. 2769-70.) A few days before the deaths, Sarah had lied to her parents, saying she was spending the night at a girl friend’s house, but instead had spent the night at Bruno’s apartment. Alan and Diane had desperately called around to find her. (State’s Lodging A-15, p. 1610.) When Alan had learned that Sarah was at Bruno’s, he went to confront Bruno and bring Sarah home. (State’s Lodging A-16, p. 2762.) Alan told Bruno, “If you don’t leave Sarah alone, I’m going to hit you and put you in jail.” (Id.) Sarah said Alan “was devastated” over the spend-the-night incident, and that he “cried over” it. (Id., pp. 2441, 2450.)

         Alan and Diane grounded Petitioner from using her car after Alan found her at Bruno’s. (State’s Lodging A-15, pp. 1610-11.) Alan and Diane spoke to Sarah about bringing statutory rape charges against Bruno. Sarah was concerned and said, “he’s 19 and I’m 16, and you, know, I didn’t want him to go to jail.” (State’s Lodging A-16, p. 2442.) After Bruno turned against Sarah to testify for the State, she told a fellow jail inmate that “when this was all over, … she would be out on the outside, and Bruno would be the one incarcerated.” (State’s Lodging A-18, p. 3849.)

         Several people testified that Sarah was not acting like herself shortly before the shootings. They thought it was odd that Petitioner stated, in an uncharacteristic manner, that she agreed with the reasoning for being grounded. (State’s Lodging A-16.) Witnesses also testified that, at volleyball practice the evening before the murders, Sarah was serious and solemn, played harder and better than she had before, and did not engage in laughter and conversation with her teammates. Bruno described Sarah’s mood as “weird” on the evening before the shootings. (State’s Lodgings A-16, p. 2764.)

         Sarah did not testify at trial, but the prosecution brought forward an unusually large number of witnesses who testified about an unusually large number of variations in Sarah’s description of the events surrounding the shootings. Sarah told Kim Richards, the woman who initially sheltered Sarah at her house after the shooting, two different stories within minutes of her arrival. (State’s Lodging A-15, pp. 1520; 1528-29.) Earlier in time Sarah said or implied that her bedroom door was closed or barely cracked-open; later, she said Diane sometimes left it open after she kissed Sarah good-night. Sarah said that she was awakened by Alan’s regular early-morning shower; other times she said she was awakened by the first gunshot. Instead of running straight across the hall to her parents’ bedroom, Sarah told investigators she ran through the Jack and Jill bathroom, through the guest room, and into the hall. In some versions, she said she merely approached the door of her parents’ room, which was propped open with a pillow, and listened; in others, she knocked on the door and called out to her mom (who did not respond); to a friend, she said she went to her parents’ closed bedroom door and heard arguing before calling out to her mom; to some people she said she heard the second shot while she was in bed, and, to others, that she heard it when she was standing in the hallway in front of her parents’ bedroom. Once she said he heard a body falling. Several times she stated that she heard a sliding glass door open or close, and then other times she said she heard the front door open or close. Once she stated she heard someone take off running out the front door. Early in time, she said he did not look in her parents’ bedroom and did not see anything. Later on, she said that she saw blood on the walls and floor and saw the bathroom light shining on the bed; she said she would have to live forever with what she saw. (State’s Lodgings A-15, pp. 2099-2101; A-16, pp. 1750, 1748-40, 1750, 1812, 2427-2429; A-18, pp. 3529, 3687-3688, 3820.)

         Sarah’s stories about what she heard, saw, and did after the shootings are accompanied by a subplot-that a cleaning lady from Whirlwind Services had killed her parents. This subplot emerged immediately. Within a few hours of the shootings, Lorna Kolash (Lorna), Sarah’s godmother, came to visit her at the Richards’ home. When Lorna had asked what had happened, Sarah did not talk about the shooting incident that had just taken place, but instead had responded:

The cleaning lady came, she took a bunch of my mom’s stuff. She had been harassing my mom, she called her on the phone. She came to volleyball, yelled at her. And I heard them arguing in the middle of the night, and I got up.

The lights were on outside, and I got up, and I asked my dad and my mom what was going on. And they told me it was just the cleaning lady, don’t worry about it, go back to bed.

(State’s Lodging A-18, p. 3622.)

         Similarly, Sarah told Karen Chase, Diane’s first cousin, that the cleaning lady had confronted Diane at a volleyball game. (Id., pp. 3720-021.) No one corroborated the allegation that the cleaning lady had confronted Diane at a volleyball game. (State’s Lodging A-18, pp. 3713-14.)

         Sarah told investigators that, when she returned from volleyball practice on Monday night, she found Diane upset and crying because the cleaning lady had called and threatened her. Sarah reported that the cleaning lady had told Diane that she had been fired from Whirlwind Services and now had no way to support her child. Diane allegedly told Sarah she intended to call police the next morning to report the stolen lotion.

         An implausible element of Sarah’s cleaning lady story is her story about having woken up at about 2:30 a.m. on the day of the shootings because she heard someone in the backyard. She said she immediately had woken up Alan and Diane, who looked in the backyard, saw a light on in the guest house even though Mel was out of town, identified the trespasser as the enraged cleaning lady, but did nothing about it. These allegations make little sense in the context of the rest of Sarah’s story. Testimony at trial indicated that Alan was very protective of his family-such as his action in retrieving his daughter from Bruno’s-and would never have gone back to bed without calling the police or at least letting the dog out of the kennel if the threatening cleaning lady or other stranger had trespassed on their property in the early-morning hours. (State’s Lodging A-19, p. 4592.)

         At trial, the prosecutor was especially thorough in calling all of the subplot characters as witnesses. The subplot played out this way. The family wedding that had been the subject of the dispute between Sarah and her parents went forward at the Johnsons’ property as planned, albeit without an invitation being extended to Bruno.

         As a surprise thank you to Diane for hosting the wedding, a relative had hired Whirlwind Services to do a one-time post-wedding house cleaning. (State’s Lodging A-18, pp. 3758-60.) Robin Lehat, who owned Whirlwind, and one employee, Janet Sylten, had cleaned Diane’s house. After the cleaning, Diane had called Robin and said a new bottle of Estee Lauder lotion was missing. (Id., p. 3762.) Robin then asked Janet about the lotion because Robin noticed Janet had several Estee Lauder products. Janet had denied taking it and refused to return to Diane’s to help Robin look for the lotion. (Id., p. 3763.)

         Robin and Diane had spoken again and decided that Robin would make up for the lost lotion by giving Diane a cleaning credit in the future. (Id., pp. 3761-64.) The owner testified that Diane had been “really nice” about the whole thing. (Id., p. 3764.) Several witnesses testified that Diane had discussed the missing lotion incident with them, had not seemed angry about it, had not said she was going to call the police, and had seemed quite pleased with the resulting compromise that she would receive a discounted cleaning in the future. (State’s Lodging A-18, pp. 3761 to 3764.)

         Janet lived on Robin’s property. Janet testified that her current boyfriend, Russ Nuxoll, was Robin’s ex-boyfriend. Not surprisingly, Robin and Janet had been having problems with each other before the lotion incident. Janet testified that she had refused to go to Diane’s house to look for the lotion because she already had planned to help Russ with his hand-made willow furniture manufacturing business that day. While Janet was at Russ’s, Robin put all of Janet’s belongings outside and left her a note that she was fired. (State’s Lodging A-16, p. 232.) Janet testified that she was not really upset over being fired from Whirlwind, because she preferred working at her other job building furniture with Russ. (Id., p. 2814.)

         After Robin and Janet parted ways, Robin changed the locks on her property. Robin testified that Janet and Russ broke in and took some things, including a gift that Russ had given to Robin when the two had dated in the past. (State’s Lodging A-18, pp. 3777-79.)

         Robin, Janet, and Russ all cooperated with investigators and provided DNA and fingerprint samples. When Captain Edward Fuller (Captain Fuller) interviewed Janet and Russ the first time, they were somewhat reluctant to speak, not knowing why they were being interviewed. Nothing they said or did during the interview indicated that they had any awareness that the Johnsons had been killed. Between interviews, Janet and Russ read the newspaper and learned that the Johnsons had been murdered; Janet and Russ freely spoke to Captain Fuller after they were aware that was the reason they were being interviewed. Janet and Russ had no clear alibis-they camped out in a wilderness area instead of having a permanent residence. Janet allowed Captain Fuller to search her belongings. (State’s Lodging A-17, pp. 2886-2910.) None of the DNA or fingerprints from the crime scene matched Robin, Janet, or Russ, and they all were cleared as suspects.

         As could be expected, both the prosecution and the defense relied on expert witnesses to try to explain to the jury the meaning of the physical evidence. The State’s experts theorized that, because there was blood spatter form both parents on Sarah’s robe and blood on the bottom of her socks, without a doubt, she was the shooter-having worn the robe backwards to protect her clothing and then discarded it. Contrarily, Sarah’s experts theorized that, because there was no blood spatter on her hair, face, the tops of her socks, or her pants, she definitely was not the shooter.

         The experts at trial did agree that both bedroom doors must have been open when Diane was shot, because Diane’s blood and tissue flew into the hallway and into Sarah’s bedroom, directly across the hall from her parents’ room. To the extent that Sarah said or implied that her door or her parents’ door was shut at the time of the shootings, that part of the story obviously was false. Similarly, the blood on the bottom of Sarah’s socks is inconsistent with those versions of her story in which she said she knocked on her parents’ door and called out to her mother but did not see anything, because-after the first shot-blood, brain matter, clumps of hair connected to body tissue, and skull fragments sprayed into the hallway. With the indisputable facts of the open doors and the bloody aftermath from the close-range shot to Diane’s head and Alan’s walk from bathroom to bedside with blood pouring from his wound, it seems impossible for Sarah to have seen nothing and still gotten blood on the bottom of her socks.

         Sarah’s trial defense-and her continuing assertion of actual innocence-is that someone else wearing Sarah’s pink robe killed her parents; otherwise, Sarah would have had blood spatter on her person and clothing. The prosecution tried to show that Sarah shot Diane through the comforter and sheet to shield herself from blood spatter. The experts had access to the sheets, but only to photographs of the comforter, because investigators did not retain the comforter as evidence. Prosecution experts opined that there were bullet holes in the comforter and the upper sheet. Defense experts believed (1) there were no bullet holes, or (2) existing holes did not bear the characteristics of being shot with a high-power rifle (soot marks, a large size, and stellate tearing of the fibers along specific lines), or (3) the holes could have been caused by propelled bone or skill fragments. (Compare State’s Lodgings A-15, pp. 1970-74; A-16, p. 2314; and A-18, pp. 4181-91, 4200; with A-19, pp. 4390, 4405-06, 4861-62; A-20, pp. 5272-73, 5657-5689.)

         Tim Richardson (Tim), a neighbor first on the scene, said he did not see any blood on the top of the comforter that was covering Diane’s body. He thought that was unusual-that there was no blood seepage up through the top. (State’s Lodging A-15, pp. 1600-01.) George Dondero, a second neighbor accompanying Tim, also said he saw no blood on the top of the bed. (Id., p. 1636.)

         Officer Ross Kirtley (Officer Kirtley), the first police officer on the scene, testified that he saw blood on the lower portion of the comforter toward the foot of the bed, which was the side of the bed closest to the sliding glass door. (Id., p. 1719.) It was “almost right on the corner, and on the side; it was a swipe, or it was a smear of some sort.” (State’s Lodging A-20, p. 5228.) That observation was consistent with Alan having moved from the bathroom, where he was shot, to the bedside, where his body was found. Officer Randy Tremble (Officer Tremble) saw blood trailing up the headboard to the wall above it, but no blood on the blanket was immediately visible. He observed no pooling of blood nor very obvious spatter on the outside of the comforter. (State’s Lodging A-15, p. 1792.)

         Michael Howard (Howard), a forensic scientist called by the defense, opined that the bottom sheet had to have been exposed at the time of the shooting, because there were blood droplets and pieces of tissue on it. (State’s Lodging A-19, pp. 4769-76.) He concluded that Sarah could not have been the shooter, because the blood spatter would have settled on her clothing, and an “extremely thorough examination [was] done by several laboratories of Sarah Johnson’s clothing, and absolutely no blood was detected.” (Id., pp. 4786-87.)

         Prosecution expert and crime scene reconstructionist Rod Englert (Englert) opined that blood spatter would not necessarily have gotten everywhere. There was a void of blood spatter on the ceiling “from the light switch over and back to the east,” a “void on the east wall,” and a void on Diane’s upper shoulder, indicating that she was covered, he testified. (State’s Lodging A-18, pp. 4134, 4167-68, 4183.) It was his opinion that the void on the ceiling, marked by a “well-defined line,” was created by “something down below at the origin of that blood … blocking it from going up …, and creating [a] void.” (Id., p. 4138-39.) Otherwise,” he explained, “you’d have it all over the ceiling, 360 degrees.” (Id.) The “void is consistent with the comforter having covered her.” (Id., p. 4181.)

         Englert theorized that the gun was placed behind Diane’s head, and the shot was fired pointing in a westerly direction to cause the spatter to go the direction it did. (Id., p. 4140.) The defense expert, Howard, agreed that the shooter had to stand on the east to cause “the heavy stuff going upwards and westward.” (State’s Lodging A-19, p. 4871.) Englert opined that, if Diane was shot through or under the sheet, that would immediately explain what could have blocked the blood spatter and made the defining line on the ceiling and on the wall, and why there was only mist and so little body debris on the robe. (State’s Lodging A-18, pp. 4181.)

         Englert would not expect the shooter to have a large amount of blood on their person, their face, or their hair. (Id., p. 4212.) Defense expert Rocky Mink disagreed, opining that anyone standing in the room would have had misted blood and blood spatter on them, which he said was confirmed by the reconstruction experiments he conducted. (State’s Lodging A-20, p. 5652.)

         The evidence showed that Sarah had washed her face twice before hospital examiners swabbed her. Samples from Sarah’s hair, face, ears, earrings, nostrils, and other exposed areas of skin were taken to be tested for traces of blood and tissue. (State’s Lodging A-15, pp. 1871-72.) The tests were negative. There was no evidence that Sarah had showered (id., pp.1875-76), but a bath towel was found with one end draped over the edge of Sarah’s tub, and the rest of the towel extending down onto the floor. (Id., p. 1903.) Experts disagreed whether Sarah could have washed the blood from her-one said yes, and the other said no, because the tests are designed to detect minute traces of blood. Sarah’s brother testified that she kept a shower cap in her bathroom. It is possible that she pulled it down over her face to shoot and then flushed it down the toilet or discarded it somewhere else. Howard agreed that a shower cap “would keep blood from showing up on somebody’s head.” (State’s Lodging A-19, p. 4898.)

         Experts did not find significant blood splatter from Diane on the high power rifle. (State’s Lodging A-19, pp. 4900-02.) And yet, the experts were certain that was the weapon that had killed the Johnsons.

         Fingerprint and DNA evidence figured prominently in the battle of the trial experts. A big part of the dispute centered on the length of time fingerprints could last on a non-porous surface, such as smooth gun metal, as opposed to porous surfaces, such as cardboard, where a fingerprint can be absorbed into the material and last indefinitely. An excellent summary of the evidence from both sides is contained in the state district court’s order on post-conviction review:

At trial, Tina Walthall (Wathall), a finger print examiner with the Idaho State Police, testified that she received fingerprint cards from Johnson, Bruno Santos, Alan Johnson, Diane Johnson, Mel Speegle, Janet Sylten (the cleaning lady), Russell Nuxoll (the cleaning lady’s boyfriend), Matthew Johnson (Johnson’s brother) and Robin LeHat (the cleaning lady’s employer).

Walthall used these print cards to compare with the prints lifted from the crime scene. After those comparisons, certain fingerprints taken from the crime scene remained unidentified, including fingerprints found on the stock of the [.264] rifle, the scope from the rifle, and two boxes of .264 shells.

A search of the Automated Fingerprint Identification System (AFIS) prior to trial using three of the unidentified prints also revealed no match to any of the unidentified fingerprints.

Walthall repeatedly testified that there is no way to date a fingerprint to determine when it was left. Walthall specifically stated: (1) “many, many years can pass and you might still find usable fingerprints on” paper or cardboard; (2) she has discovered prints off of nonporous surfaces more than a year later; (3) one would expect to find fingerprints more than a year old if nothing happened between “when they were deposited and when [they were] processed”; and (4) “it is probable that a fingerprint would last up to and exceeding a year, providing there has been nothing to damage that fingerprint in the interim,” which is true even on a nonporous surface.

The defense called [Robert] Kerchusky to testify at Johnson’s trial, and again before this court [on post-conviction review].

During the trial, Kerchusky was asked by Pangburn how long fingerprints can last. He replied, “we can’t be sure how long they’re going to last,” but that “pretty much on my experience, after a year, they’re just about gone, as far as I’m concerned,” [specifically addressing his opinion that latent prints on a nonporous surface will not last more than a year].

Kerchusky further testified that fingerprints will dry up and evaporate over the course of one year. Kerchusky also agreed, however, that it is fair to say that a fingerprint on a box could last for years and years and years.

Mr. Kerchusky, however, acknowledged that aging of fingerprints on nonporous surfaces is a controversial subject because “there’s so many variables as far as weather, where it’s located. I mean there’s so many things that come into it, there’s no way in the world that anybody could write any article on it.”

Kerchusky also acknowledged that fingerprints on porous surfaces can last for years and that there are some “rare” instances where a latent print that was over a year old could be found on a nonporous surface. Kerchusky further testified that although he could not determine how old a fingerprint is, he “still would have an opinion as far as whether it’s a fresh print or not.”

In 2009, approximately four years after Johnson’s criminal trial, Walthall compared the unidentified prints from the murder scene to prints belonging to Mr. Christopher Kevin Hill [-who turned out to be a friend of Mel Speegle]. Walthall testified at the post-conviction evidentiary hearing that, of the previously unidentified fingerprints, Hill’s matched those that were found on the scope, the boxes of ammunition, and the [.264] rifle.

Kerchusky … referred to the prints on the rifle, scope, and ammunition (Christopher Kevin Hill’s prints) as “fresh” because, according to him, any prints left on the gun before Mr. Speegle put it in his closet would have been wiped off by the clothes hanging in his closet and because the prints were not “etched” into the metal of the gun.

(State District Court Findings of Fact, Post-Conviction Case, State’s Lodging E-7, pp. 253-54.)^[1]

         The jury was aware that there was a set of matching fingerprints on the scope, the high-power rifle, and the box of shells, and that the set did not match any of the carded fingerprints collected by investigators. (State’s Lodging F-7, p. 6.) The jury did not know that the fingerprints belonged to Christopher, because that match was not made until about six years after trial. The jury knew that the shooter took care not to leave any fingerprints on the trigger, trigger guard, or bolt lever. It is unlikely that the shooter would have been so careless to leave fingerprints elsewhere on the gun and ammunition. In fact, hoping to leave past fingerprints on the gun and scope rather than wiping it clean could have been part of the shooter’s plan to inculpate those who had previously handled the gun, like Mel and Christopher, diverting blame from the real shooter.

         Sarah’s trial lasted approximately three weeks. She was represented by lead attorney Bob Pangburn and second chair attorney Mark Rader. The State was represented by Blaine County Prosecuting Attorneys Jim Thomas and Justin Whatcott. Fourth Judicial District Judge Barry Wood presided at the trial, because the venue had been changed from the Fifth Judicial District in Blaine County across the state to Ada County.

         The jury convicted Sarah of both counts of first degree murder and a firearm enhancement. On June 30, 2005, she was sentenced to two concurrent fixed life sentences for the first-degree murders of Alan and Diane Johnson, plus a 15-year weapon enhancement. (Dkt. 1, p. 1.) Sarah asked that an appeal be filed on her behalf, but trial counsel failed to do so. (State’s Lodging A-10, pp. 75-78.) New counsel filed a post-conviction action and a motion for new appeal for Sarah on April 19, 2006, which were heard by Fifth Judicial District Judge G. Richard Bevin. (State’s Lodgings E-1 to E-8.) Sarah prevailed on the appeal issue. An amended judgment was entered in the criminal case, whereupon Sarah was permitted to file a direct appeal. (State’s Lodgings A-10, pp. 61-86; C-1 to C-8.)

         In the reinstated direct appeal action, the Idaho Supreme Court affirmed the judgment on June 26, 2008 (State’s Lodging C-7), and the United States Supreme Court denied Sarah’s petition for writ of certiorari on December 1, 2008. Petitioner also appealed from the portions of the first post-conviction action that were denied by the state district court. The denial of the first post-conviction action was affirmed by the Idaho Supreme Court. (State’s Lodging F-7.)

         Years later, on April 9, 2012, Sarah filed a successive post-conviction petition and a request for new DNA testing in state court, after she discovered the three matching fingerprints belonged to Christopher. Both requests were denied, with the denials affirmed on appeal. (State’s Lodgings G-1 through H-8.) The United States Supreme ...