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December, 2009

Tennessee Executes Cecil Johnson

On Wednesday morning, December 2, Cecil Johnson was executed by the state of Tennessee after spending 28 years on Tennessee’s death row. Johnson was convicted and sentenced to death for the murders of Bobbie Bell, Jr., Charles House, and James Moore in the 1980 robbery of Bell’s Market in Nashville.

As with so many other capital cases, Johnson’s case was fraught with problems. At the trial, two eyewitnesses identified Johnson as the perpetrator as did a customer who entered the market during the crime. A friend of Johnson, Victor Davis, who initially provided Johnson with an alibi, changed his testimony less than one week before trial and incriminated Johnson in exchange for immunity. Johnson was convicted and sentenced to death with no physical evidence, no murder weapon, and no robbery proceeds recovered.

Initially, Davis, Johnson’s alibi witness, placed Johnson in, or at least, on his way back from Franklin, during the time of the robbery. Davis’ account, first given to an investigator for the Public Defenders’ Office on July 8, 1980, was significantly corroborated by a totally neutral, third party witness. Defense counsel disclosed Davis as an alibi witness months before trial, and prosecution investigators interviewed him at length. Davis stood by his account.

Up until January 2, 1981 (eleven days before trial), the State asserted that it had disclosed all of its witnesses, as procedure required. On that date, however, the State disclosed the names of fifteen new witnesses. With one exception, they turned out to be minor witnesses, but the late disclosures adversely affected the defense’s final trial preparations. The one exception was a young woman named Debra Smith, who claimed to know Cecil Johnson from school in the past. She testified at trial that she entered the market while the robbery was in progress, knew it was a robbery, saw Johnson behind the counter, calmly bought a soda, and did not report the robbery.

Even more significantly, on the Friday before trial was to begin on Tuesday, Assistant District Attorney General Sterling Gray directed certain Metro police officers to pick up Davis and bring him in for further questioning. This was accomplished shortly before midnight, and the officers brought Davis to the District Attorney’s Office, where he was confronted by the three trial prosecutors, a police detective, and a D.A. investigator. After some 3 hours (the most critical portion of which was spent alone with General Gray), Davis changed his story to one that now incriminated Johnson. Davis would no longer be a witness for the defense.

While all the reviewing courts have failed to acknowledge it, there is undisputed proof that General Gray, by his own subsequent admission, acted with the intent to eliminate Davis as a defense witness. It is also undisputed (based primarily but not exclusively on Davis’s own trial testimony) that General Gray threatened him with the death penalty if he testified for Johnson. No court has ever dealt with General Gray’s undisputed admission that he acted with the intent to eliminate Davis as a defense witness. (General Gray would subsequently be elected to the Davidson County Criminal Court bench in 1982. His judicial career ended in 1987 when he was caught on tape soliciting a bribe. Tragically, he thereafter murdered his ex-wife and committed suicide.)

The State’s case against Johnson turned on the seemingly positive eyewitness identifications of Bob Bell(the father of Bobbie Bell) and Louis Smith, as reflected in the State’s closing arguments. Central to Mr. Bell’s purported identification was the fact (undisputed) that Johnson was an occasional customer of the market and had been in a few days earlier. The defense contended that this acquaintanceship was the cause of Mr. Bell’s honestly mistaken identification of Johnson, especially given the horror Bell had endured.

Prior to trial, Johnson’s attorneys made numerous, specific requests for evidence that might cast doubt on the reliability of the eyewitness identifications. The State claimed that nothing of the sort existed. However, in 1992, the State finally turned over the case file because of a change in the Tennessee Open Records Act. In the newly revealed files, a statement from Mr. Bell to a detective asserted that the gunman had “no facial hair.” Johnson had a mustache and a goatee at the time. Given the fact that Bell knew Johnson as a customer, and that at trial, Bell stated that he kept his eyes on the gunman’s face for the entire duration of the robbery (which lasted several minutes), the fact that Bell initially described the gunman as having no facial hair was very significant and consistent with the defense theory of honest mistake. The file also contained Louis Smith’s contemporaneous statement to a police officer that he did not even see the gunman’s face, as well as two other similar statements by Smith to two other officers. Had these statements been turned over before trial, the prosecution could not have presented Mr. Smith as a serious eyewitness identification witness.

The withholding of this exculpatory evidence had the effect of creating a substantial delay in this case benefiting the State of Tennessee and not Cecil Johnson. By the time Johnson’s lawyers were finally able to get this case heard in federal court, it was subject to the “Anti-Terrorism and Effective Death Penalty Act”(AEDPA) passed in 1996 which limited the material the courts could review. Even so, one of the three judges on the Sixth Circuit Court of Appeals who heard Johnson’s case issued a vigorous dissent, writing that Johnson’s case, “is not even a close one.” Two U.S. Supreme Court Justices sparred over whether or not to issue a stay for Johnson given the extreme delays in the appeals process. Read more here.

Johnson’s case highlights the grave problems with the reliability of eyewitness testimony and the lack of adequate safeguards to ensure such identifications are as reliable as possible. Studies have demonstrated that faulty eyewitness identifications are a leading causes of confirmed wrongful convictions.

And yet, even with all these problems, the Governor nor the courts intervened to stop the execution.

On December 1, TADP held services and vigils around the state to remember all victims of violence and to witness against executions. Over 80 people gathered at Riverbend Maximum Security Institution in the cold and drizzle to join in lighting candles, remembering all those devastated by murder and to say “no more of this.”

Though the execution took place, those of us who are committed to abolition will keep up the work for as long as it takes to demonstrate that we do not need the death penalty and that it diminishes all of us whenever the state takes a life, no matter whose life it is.

Thanks to all of you for your patience during this last week as we have been experiencing computer problems. We did our best to get the word out about the events planned around the execution and appreciate your understanding.

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