United States District Court, D. Idaho
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 ...