Final Meal:
Steak, french fries and a salad.

Final Words:
"I know that I caused irreparable damage to each surviving family member. I earnestly pray for your forgiveness."

Internet Sources:

Capital Punishment in Missouri from Missouri.Net

On December 8, 1991 James Johnson was involved in an argument with his daughter Dawn Becker, who lived with Johnson and his wife Jerri Wilson in Moniteau County, Missouri. During the argument Johnson stated that he “couldn’t take it anymore” and was going to move out. His wife told him that if his daughter moved out she would too. Johnson then told his wife to choose between him or their daughter. When Mrs. Johnson chose their daughter Johnson ordered both of them from the home. When they did not leave Johnson took a rifle and pointed it at both of the women and forcibly removed his daughter from the house.

A few minutes later Johnson loaded some guns and ammunition into his car and drove away. He returned a short time later with his daughter and told his wife he wanted to work things out. Shortly thereafter Moniteau County Deputy Sheriff Les Roark arrived at the house to investigate a domestic disturbance. Roark asked to speak with Ms. Becker, but Johnson refused. Mrs. Johnson brought Becker to the door and told Roark that they were both fine. As Roark was walking back to his patrol car Johnson stepped outside and shot the deputy twice. Johnson stepped inside the house, but when he heard Roark moaning he went back outside and shot him in the forehead, killing him.

Johnson then left the house in his car with his guns and ammunition, some clothes and a thermos. Johnson drove to the home of Moniteau County Sheriff Kenny Jones whose family was having a Christmas Party. Using a .22 caliber rifle Johnson fired shots on a group of people he saw through a window. Pam Jones, wife of Sheriff Jones was struck five times in the shoulder, face, neck and back of the head. She died at the scene in front of her family.

Johnson then went to the home of Deputy Sheriff Russell Borts who was talking on the telephone. Johnson shot him four times in the face, hand and chest. Deputy Borts survived the attack. Johnson then went to the Moniteau County Sheriff’s Office where law enforcement officers from around the area had gathered following the shootings. When word reached them that Deputy Borts had been shot the officers left the office. Johnson, who was laying in wait outside the office, opened fire and shot Cooper County Sheriff Charles Smith four times with .22 caliber semi-automatic rifle. Sheriff Smith died from the gunshot wounds to his face, side, head and back. Moments later Miller County Deputy Sheriff Sandra Wilson arrived at the office. As she was getting out of her car Johnson shot her in the chest with an eight millimeter, bolt action Mauser rifle. Deputy Wilson died at the scene.

Johnson was able to escape the scene and hid on the back porch of a local resident, Dorothy Mae Miller. The next morning Johnson confronted Mrs. Miller and held her hostage for most of the day. Johnson allowed her to leave her house in the evening so she could attend a Christmas party where she was expected. Upon her release Mrs. Miller contacted authorities and told them where Johnson was. Law enforcement went to Mrs. Miller’s home, whereupon they talked Johnson into surrendering.

Legal Chronology:

12/10/91 - James Johnson is arrested for four counts of Murder First Degree in Moniteau County, Missouri.

02/01/93 - Johnson is convicted on four counts of Murder First Degree following a ten day trial. The jury recommends death.

04/23/93 - Johnson is sentenced to each of the four counts of Murder First Degree.

08/26/93 - Johnson files a post-conviction motion for relief in the Circuit Court.

10/10/96 - Johnson’s post-conviction motion for relief is denied by the Circuit Court.

04/30/98 - The Missouri State Supreme Court affirms Johnson’s conviction and sentence.

10/15/99 - Johnson files a petition for writ of habeas corpus in the United States District Court.

02/23/00 - The United States District Court denies Johnson’s petition for writ of habeas corpus.

06/14/00 - The Eighth Circuit Court of Appeals declines to review denial of petition for writ of habeas corpus.

03/19/01 - The United States Supreme Court denies Johnson's petition for writ of certiorari.

12/11/01 - The Missouri State Supreme Court sets January 9, 2002 as Johnson's execution date.

AUDIO LINK: Sheriff Kenny Jones talks with Missourinet reporter Brent Martin about the murders and execution

Last Statement of Oyfeider James Johnson:

To the families of Leslie Roark, Pam Jones, Charles Smith and Sandra Wilson, I am profoundly sorrowful for taking their lives. I know that I have caused irreparable damage to each surviving family member. I also feel responsible for the unexpected deaths of Mrs. Charles Smith and Mr. Elba Roark. I am truly sorry that I have caused each family member along with their friends so much pain and suffering. I earnestly pray for your forgiveness. I can only hope that taking me out of this world will somehow bring closure to this devastating time in your life, and fulfill your healing process. May God grant you his strength and bring total healing and complete restoration in your lives. To all my loved ones; family, friends, brothers and sisters in Christ; I am so sorry for all the pain, confusion, heartache and mental duress that I have brought upon your lives. Please find it in your hearts to forgive me. The news reports today will say Jim Johnson is dead, those reports will be untrue. Today I will meet the one who gave his life for my sins. The one who extended to me mercy. Today I shall meet Jesus my Lord and Savior face to face. When the executioners have done their worst, God will be shown to have done his best. May the God of all grace bring peace to your hearts.

National Coalition to Abolish the Death Penalty

James Johnson - Scheduled Execution Date and Time: 1/9/02 1:01 AM EST.

James Johnson is scheduled to be Missouri’s first execution of 2002. Missouri ranks third in the nation for number of executions since 1976, with seven last year alone. Johnson’s conviction and sentencing is troubling, considering that the Missouri Supreme Court acknowledged the incompetence of his legal counsel. Moreover, Johnson’s mental health and his behavior in prison following sentencing point to significant mitigating circumstances in his crime.

With two justices abstaining and one dissenting, the Missouri Supreme Court upheld Johnson’s conviction, while casting doubts on the relative competency of his attorney. Johnson’s attorney failed to do the necessary investigative work of interviewing two state troopers, which would have excluded evidence he used at trial. This evidence- that Johnson constructed a “perimeter defense” at his home similar to one used during wartime – was meant to demonstrate the state of his mental health during the crime. But, the testimony of the two State Troopers contradicted the idea that Johnson had anything to do with it. Unfortunately for Johnson, this evidence in effect perjured him in the minds of the jury, tainting them for the rest of the trial.

Johnson, a Vietnam veteran, maintained he suffers from Post Traumatic Stress Disorder. However, this was seriously undermined by the performance of his attorney. Instead of corroborating his illness, the evidence destroyed any sympathy the jury may have had for his mental condition. A justice of the Missouri Supreme Court agreed in his dissenting opinion, saying “…it is reasonably likely that such a juror would find those mental problems, combined with Mr. Johnson’s previous positive contribution to society sufficiently mitigating to warrant a sentence of life.”

Since he was put on death row in 1994, Johnson has attempted to rehabilitate himself and has served as a spiritual advisor to numerous death row inmates. Please write to the State of Missouri to protest its treatment toward the mentally ill.

Please Contact: Governor Bob Holden, Missouri Capital Building, Rm. 216, P.O. Box 720, Jefferson City, MO 65102-0720, phone: (573) 751-3222, fax: (573) 751-1495, e-mail: www.gov.state.mo.us/guest.htm , web: www.gov.state.mo.us/; Board of Pardons and Paroles, Attn: Cranston Mitchell, 1511 Christy Drive, Jefferson City, MO 65101, phone: (573) 751-8488, fax: (573) 751-8501; Write Op-Ed to: Jefferson City News-Tribune, Kansas City Star, St. Louis Post-Dispatch; For More Information: Missourans Against the Death Penalty, Eastern Missouri Coalition to Abolish the Death Penalty.

ProDeathPenalty.Com

James Johnson lived in rural Moniteau County with his wife, Jeri, and her 19-year-old daughter, Dawn. Johnson and Dawn had an uneasy relationship and fought a great deal. On the evening of December 8, 1991, the two of them were involved in an argument during which Johnson cried out that "he couldn’t take it anymore" and told his wife that her daughter had to move out. He wife replied that if her daughter moved out, so would she. Johnson then told her to choose between her daughter and him, and when his wife chose her daughter, Johnson ordered them both out of the house. At that point, they refused to be forced out, so Johnson produced a loaded rifle and pointed it at his wife. When she did not back down, Johnson pointed the rifle at Dawn. Johnson then grabbed Dawn in a choke-hold and forced her out of the door at which time she fled.

Within a few minutes, Johnson loaded some guns and ammunition into his car and drove away. He returned later with Dawn in his car and told his wife that he wanted to work things out. Shortly thereafter, Deputy Les Roark of the Moniteau County Sheriff’s Department arrived at the house to investigate a domestic disturbance. Roark asked to speak with Dawn, but Johnson refused. His wife brought Dawn to the door and told Roark that they were both fine. As Roark was walking back to his car, Johnson pulled out a .38 caliber pistol, stepped onto the porch and shot Roark twice, once in the rear and once in the back of the hand. Johnson then stepped back inside, but when he heard Roark moaning, he went again to the porch and shot Roark in the forehead, killing him.

Johnson soon left the house in the car with his guns and ammunition, and with clothes and a thermos, and drove to the home of Sheriff Kenny Jones, whose family was having a Christmas party. Using a .22 caliber semi-automatic rifle, Johnson opened fire on a group of people he saw through the window. Pam Jones, the wife of the sheriff, was shot five times, once in the shoulder, once in the face, once in the neck, and twice in the back of the head. She died in her home in front of her family. Johnson next appeared outside the home of Moniteau County Deputy Sheriff Russell Borts. Johnson shot Borts through a window while Borts was talking on the telephone. Although Borts was shot four times, once in the hand, twice in the chest, and once in the face, he survived. After shooting Borts, Johnson went to the sheriff’s office where peace officers from numerous jurisdictions had gathered. When word of the attack on Borts arrived, the officers rushed out from the sheriff’s office. Johnson, who was lying in wait, fired on the emerging officers.

Cooper County Sheriff Charles Smith was shot four times with a.22 caliber semi-automatic rifle, once in the face, once in the right side, once in the upper back, and once in the head. He died from the shot to the head. Moments later, Miller County Deputy Sandra Wilson arrived at the sheriff’s office, stopped her patrol car in the street, and slid to the passenger side. As she started to climb from the car onto the pavement, Johnson shot her through the heart with an 8-millimeter, bolt-action Mauser. Deputy Wilson died on the pavement. Johnson then fled to the back porch of the home of an elderly woman and hid there for the rest of the night. The next morning, he confronted the woman and hid in her house for most of the day, holding her hostage. During that time, Johnson admitted to her that he had shot five people. That evening, Johnson allowed the woman to leave the house so that she could attend a Christmas party where she was expected. Upon her release, she notified authorities that Johnson was in her house. Soon thereafter, law enforcement officers surrounded her house and negotiated Johnson’s surrender.

The mother of murder victim Pam Jones, wife of Moniteau County Sheriff Kenny Jones, said she thinks of the murders every day. She ponders what her grandchildren missed without their mother, and she respects her son-in law for carrying on his duties as sheriff and raising the children.

Mid-Missouri Fellowship of Reconciliation

Help Halt Jim Johnson’s January 9 Execution (Megan Clark)

When Jim Johnson killed during the Vietnam War, the government supported him. But when his post-traumatic stress disorder led him to kill again 20 years later, he was sentenced to death. Johnson is scheduled to be executed Jan. 9 for the deaths of three Missouri law enforcement officers and a sheriff’s wife.

On Dec. 9, 1991, Moniteau County deputy Les Roark responded to a domestic dispute call at the Johnson home in Jamestown. Johnson had been arguing with his wife Jerri and her daughter from a previous marriage. As Roark was leaving, having decided everything was OK, Johnson shot him. Dressed in camouflage fatigues, Johnson loaded his car with three guns and several boxes of ammunition. He then drove 15 miles to the home of Kenny Jones, the Moniteau County sheriff, where he shot Jones’ wife Pam through a window.

Johnson’s next stop was the home of deputy Russell Borts, who had just returned home to change his clothes. He was shot through a window but survived. While responding to Borts’ attack, Cooper County sheriff Charles Smith was gunned down. Minutes later, Miller County deputy Sandra Wilson was shot in her car. Johnson hid in a nearby home for 10 hours before surrendering.

We of FOR extend condolences to the victims’ family members and friends. We condemn both Johnson’s actions and his upcoming execution, as well as the loss of Vietnamese and U.S. lives during the Vietnam War. There is no doubt that Johnson was responsible for the four murders, but there are several issues that must not be ignored.

Post Traumatic Stress Disorder - Johnson spent four months in Southeast Asia fighting in Vietnam. Among his many frightening close encounters with war, include his first day on the battlefield on 12 June 1970(according to the Columbia Daily Tribune 18 October 1992): Soldiers within his army company set out on night patrol to set an ambush for Vietcong forces near Tam Ky. U.S. soldiers spotted two Viet Cong fighters dressed in black and shot them to death. The gunfire attracted a much larger fighting force which was lying their own ambush. “C company found itself caught in the crossfire of whistling mortar rounds, AK-47 gunfire and rocket-propelled grenades.” Gunships, called in to pick up the some of the 13 wounded U.S. troops (many of whom later died), were repelled by the Vietcong. A U.S. jetfighter soon after dropped a 750-pound napalm bomb which killed probably dozens of Vietcong individuals and obliterated the area. Only a million of the 2.8 million Vietnam veterans ever saw active combat. About 500,000 of those veterans are estimated to have post-traumatic stress disorder (PTSD).

According to the American Psychiatric Association, PTSD usually manifests in three ways:

1. Intrusion. In people with PTSD, memories of the trauma reoccur unexpectedly, and flashbacks intrude into their current lives. It may be so strong that individuals almost feel like they are actually experiencing the trauma again or seeing it unfold before their eyes. Because of their terrifying nightmares, they may develop insomnia. Jerri Johnson testified that her husband had been having nightmares for nearly a year before the murders. Sometimes he’d jump up, grab his gun and go outside. During those nights, one of his lawyers believe Johnson performed night patrols reminiscent of his Vietnam duties. Johnson was dressed in camouflage fatigues when he committed the murders.

2. Avoidance. These symptoms affect relationships with others. The inability of people with PTSD to work out grief and anger over the traumatic event means the trauma can continue to affect their behavior without their being aware of it. Depression is a common product of this inability to resolve painful feelings. Before the murders, Johnson showed signs of depression. His irritability and unhappiness distanced friends and family. His marriage was falling apart. During his first month in jail, his depression led him to attempt suicide on an exercise machine by dropping 110 pounds of weight on his head.

3. Hyperarousal. PTSD can cause those who have it to act as if they are constantly threatened by the trauma that caused their illness. They can become suddenly irritable or explosive, even when they are not provoked. This constant feeling that danger is near causes exaggerated startle reactions. In 1990, as tensions flared in the Persian Gulf, Johnson worried his unit would be called up. He couldn’t escape memories of Vietnam, which led him to feel serious anxiety. Jerri Johnson testified that you couldn’t approach him unannounced because “you might get decked.” The night of the murders, Jim Johnson said, he saw enemy uniforms and fired like he was taught. Only the people he killed this time weren’t the Vietcong.

Johnson’s character - As a child, Johnson loved animals, music and religion. When he wasn’t at church or working on his father’s farm, he liked to ride around town with his kittens in the front basket of his bike. As an adult, he was known for his good deeds. In 1990, when a family friend lost everything in a fire, Johnson started a fund drive anonymously with a $100 bill. Later that year, when Dallas Cooper, a close friend, was killed in a helicopter crash, Johnson stepped forward to help the widow and her children. He put Cooper’s estate in order and made sure his tools were sold at a fair price. When a friend was away during the Persian Gulf crisis, Johnson cut firewood for his family and fixed their car.

Just days before the murders, Johnson joined some friends to play cards. One of them was Borts, the lone survivor of the attacks. Even after the crime, Borts said, “As far as I was concerned then, he was family. You couldn’t ask for a better person.” During Johnson’s 10-hour hide out, he stayed in the home of Dorothymae Miller, an 83-year-old widow who had left her door unlocked. While he was there, Miller said, Johnson was polite and watched TV with her. They even prayed together for the town and the victims. At one point, Johnson asked Miller for her car. She refused, saying it was the first new car she had ever owned. He could have easily killed her and made a dash for the county border, but he didn’t. If Johnson was truly a murderer, he would have had no qualms about killing one more person. Instead, he stayed at Miller’s home until he surrendered. In the years he’s spent at Potosi Correctional Center, Johnson has worked as a chaplain’s assistant. He believes he survived his suicide for a reason, and he’s turned to God with sincerity and fervor. He leads the chapel music, helps set up services and programs and counsels fellow prisoners when they’ re unhappy.

“It’s so great when you can help somebody,” Johnson says. “Even just saying, ‘I love you, brother’ or ‘you did a good job’ – words men around hear are starved to hear. I know that many times on the outside, I needed somebody to help me get through the day, and it didn’t happen. And I don’t want other people to have to go through that.” It’s hard to tell what set Johnson off onto his violent path across Moniteau County. Diana Cooper, the widow of Dallas said, “Their personalities were a lot alike. They kept a lot of things inside them. I know Jimmy was extremely upset over Dallas’ death, but I don’t know if that’s what set him off...This isn’t the Jimmy I knew. It could have been a culmination of several things. But it brought one fact home to me. There’s a very fine line between reality and insanity. Each of us have that line, but none of us know what will push us over the edge.”

It’s assumed by many in our society that families support the execution of the person who killed their loved one. That’s not the case with Betty Smith, widow of Sheriff Charles Smith. “I think she should get life in prison with no parole,” she told the Columbia Daily Tribune (18 October 1992). January is a time for remembering the past and looking ahead to the future. We pray that the new year will bring an end to Missouri’s death penalty and not to Jim Johnson’s life.

VIGIL

Tuesday, January 8, 10 a.m.-2 p.m. Outside Governor’s Office, 2nd Floor Capitol Bldg.
5-6 p.m. Boone Co. Courthouse, Columbia
6:30 p.m. Prayer Vigil, St. Luke’s United Methodist Church (204 E. Ash, Columbia)
11 p.m.-12 midnight State Capitol (High Street), Jefferson City (10 p.m. carpool at Boone Co. Courthouse)

Western Missouri Coalition to Abolish the Death Penalty

James Johnson's execution has been scheduled for January 9, 2002; vigils will be January 8. Johnson, a National Guard helicopter technician and Vietnam vet with no criminal history, senselessly shot and killed four people as a result of Post Traumatic Stress Disorder (PTSD). On the night of the killings he was experiencing a dissociative flashback caused by recent psychological stressors.

ISSUES:

Johnson's defense counsel failed to investigate facts relating to evidence that defense counsel used in the opening statements to support defendent's claim of insanity. The prosecution immediately brought witnesses that proved the defense counsel's claims were false. This destroyed the credibility of the insanity defense. (Early police investigations found "perimeter evidence" of strings of tin cans and remnants of cooked food and slashed tires at Johnson's home. Johnson had no memory of doing this things. Defense counsel assumed Johnson did these things as part of his flashback to combat training in Vietnam. He used this evidense to build a case of PTSD. At trial, the prosecution immediately brought forth two highway patrol troopers who claimed they did these things to trap Johnson. The defense counsel could never recover from this blunder.)

- Defense counsel failed to present mitigating evidence about Johnson's life history such as his difficult childhood including abuse and the fact that his mentally retarded mother placed his brother and him in the Missouri Baptist Children's Home. There were problems with his foster care placement as well as with the family that eventually adopted him.

- Defense counsel failed to call produce various documents or call expert witnesses who had examined Johnson and could support his depression, his suicide attempts and other profound emotional problems that led to the killings.

See also an article by Megan Clark, journalism student at the University of Missouri, at http://www.mindspring.com/~emcadp/JohnsonJ.html#megan

WHAT YOU CAN DO on or before Tuesday, Jan. 8: Any part helps:

1. Ask Gov. Bob Holden to commute the sentence: 573-751-3222, fax 573-751-1495; State Capitol, Box 720, Jefferson City, MO 65101. Toll-free: K.C.: 889-3186; St.Louis:340-6900.

2. Candlelight vigil Tues. 10/2, outside the Potosi prison, 11:00pm-12:01am, near front gate, Potosi Correctional Facility, Hwy O, just off Hwy 8, south off Hwy 21, or I-55 to Hwy 67 south to Hwy 8 west.

CANCELLED IF COMMUTATION OR STAY.

Meagan Clark - Help Halt Jim Johnson’s January 8 Execution.

Clemency Petition on Behalf of James R. Johnson

PETITION FOR CLEMENCY TO THE HONORABLE BOB HOLDEN, GOVERNOR OF THE STATE OF MISSOURI IN RE: JAMES R. JOHNSON, Sentenced to die on January 9, 2002.

Capital punishment . . . fails to live up to our deep conviction that all human life is sacred . . .. The antidote to violence is love, not more violence . . .. We are asking whether we can teach that killing is wrong by killing those who have been convicted of killing others . . .. We cannot overcome crime by simply executing criminals, nor can we restore the lives of the innocent by ending the lives of those convicted of their murders. The death penalty offers the tragic illusion that we can defend life by taking life. U.S. Catholic Bishops, November 15, 2000

I. INTRODUCTION

On the night of December 9, 1991, in the small central Missouri town of California, Jim Johnson, a National Guard helicopter mechanic and Vietnam veteran with no criminal history, senselessly shot and killed four people – Deputy Leslie Roark, Pam Jones, wife of the county Sheriff, Sheriff Charles Smith, and Deputy Sandra Miller. He has never denied these killings. Prior to this, Mr. Johnson had been a law-abiding, churchgoing, and well liked member of his community. The consensus opinion on the shooting spree among those who knew Mr. Johnson was that he had lost his mind.

Indeed, Mr. Johnson’s trial attorneys asserted an insanity defense at trial. Based on Mr. Johnson’s combat experience in Vietnam, his attorneys asserted that he was suffering from Post Traumatic Stress Disorder, and was experiencing a disassociative flashback on the night of the killings caused by recent psychological stressors. Because law enforcement officers and the wife of a sheriff were the victims, because the crime was so horrific, because issues of insanity are so difficult to explain, it was almost inevitable that a jury would convict Jim and sentence him to die. The jury saw one tragic night in the life of Jim Johnson, a night that makes no sense when compared with what had come before it and what has come since.

We hope to show the Governor in this Petition that there is another Jim Johnson, a Christian Jim, a Jim that is an asset to the Potosi prison spiritual community, a Jim who deserves to live out his natural days in prison.

II. JIM’S BACKGROUND

Jim Raised in California, Missouri - Jim was born James Rodney Barker on April 18, 1949. His natural mother was unmarried, mentally ill, and unable to care for him. She sent Jim and his slightly older brother, Tommy, to the Missouri Baptist Children’s Home shortly after Jim’s birth. From there they were separately placed in various foster homes. In 1950, Ward and Mary Johnson became foster parents for Tommy. They lived on a small farm in California, Missouri. Jim, still separated from his brother, was either in the Children’s home or with other families until April 1951, when he too went to live with the Johnsons. After awhile, the Johnsons found Tommy too difficult to manage and sent him back to the Children’s Home. Jim, however, continued to live with the Johnsons, and when he was eight years old, they adopted him.

Jim’s adoptive parents were loving Christians, and Jim was raised in church and Sunday school. While he knew he was adopted and had been separated from his brother, he had a decent childhood. He enjoyed life on the farm, and came to be a real member of the Johnson family. Jim graduated from California High School in 1967, during the Vietnam War. For whatever reason, Jim was not immediately drafted. Instead, he married his high school sweetheart, Jean Reed, and took his first steps into adult life.

Drafted to Vietnam - In 1969, Jim’s draft number came up, and he was inducted into the army. Jim hoped he would not be sent to Vietnam. The war was on the nightly news, and the thought of it frightened him. After basic training, he was sent to Fort Ord, California, and thought he might avoid combat. That did not happen though. With just less than a year left to serve, he was sent to Vietnam. (Please click for video clip) Jim becomes emotional when asked about Vietnam. He does not want to talk about it. (Please click for video clip) But through others we know something of what he experienced.

Edward Duffy, a college professor, served with Jim. During Jim’s post-conviction hearing, Mr. Duffy testified about the combat Jim experienced. Mr. Duffy recalled a day when the commanders of his company, the captain and first sergeant, set off a mine. Mr. Duffy testified: And once I heard my radio—I was initially attached to the first battalion—and we sort of double timed back to the company. And once I got back there, I was sort of shocked because all I could hear was moaning and groaning and men hollering for help and they, there were about eight or ten soldiers standing around but nobody was helping them. At that point I started getting guys to help me get the wounded, and I remember specifically Jim was one of the guys to help me bring out eight to ten guys wounded, and Jim Johnson was one of the guys to help and get those guys out and med-evac’d out that night . . ..

These men were in critical condition. At least three or four of them—the captain basically, from my understanding, had sat on the mine and his legs and part of his genitals had been blown off, and the first sergeant was ripped open, and the radio man basically his leg was blown off. It was a mess, I’ll have you know, the worst I had ever seen, that many men down at one time while I was there, and it was a very difficult situation . . .. Basically most of the command structure was out. And I think that’s what created a lot of turmoil. Nobody there to really give orders in terms of what to do. And it was a very gruesome sight, and Jim was one of the persons that helped us get those people out of there. Most of the people was very concerned about going in there, that it would set off more mines, but somebody has to go in there and get them, because you couldn’t wait until daylight, they would have been all dead.

Coming Home

[redacted]. Her condition was severe enough that Jim was granted emergency leave and a hardship discharge so that he could come home and take care of her. Jim and Jean lived with Jim’s parents while Jim got on his feet. Jim worked as a sales clerk and auto mechanic at an auto sales business, and then at a pool table manufacturing company. Jim and Jean purchased a small house in their home town of California. Unfortunately, Jean never felt the same about her marriage to Jim after her hospitalization and his return from Vietnam. She felt like Jim was a stranger to her, and they grew distant. They were divorced in 1974.

Job in the Feed Business - Jim got a good job as a livestock feed salesman for Biozyme, Inc. in 1974. Jim sold feed to farmers and veterinarians throughout central Missouri, and parts of Oklahoma, Arkansas, and Illinois. (Please click here for video clip) He was a good worker and well-liked by his customers. He worked for Biozyme for over eight years.

National Guard - Jim joined the Missouri National Guard in 1977. (Please click here for video clip) His main interest was helicopters, and he trained as a mechanic. In 1982, tired of the constant travel that his job as a feed salesman required, he went to work for the National Guard full time as a helicopter mechanic. (Please click here for video clip) Jim prospered in his job at the National Guard. He became a fine mechanic and earned the reputation of being a conscientious and reliable worker. (Please click here for video clip) He made good friends there and was known as someone pleasant to be around.

Marriages - Jim married twice after the break up of his marriage to Jean. In 1975, he married Brenda Sommers. That marriage lasted until 1978. And in 1990, he married Jerri Weed.

Reunited with Brother - In 1979, Jim was reunited with his brother, Tommy. By this time Tommy was [redacted], named after his adoptive father. [redacted] and Jim became good friends, and [redacted] was even the best man at Jim’s marriage. (Please click here for video clip) [redacted] has always known Jim as a good Christian man. (Please click here for video clip)

California Still Home - Throughout this time Jim continued to live in California, Missouri. He was an active member of the Salem Baptist Church there. He sang in the choir. He helped enlist new church members. He was a well-thought-of member of the community.

An Ordinary Missourian - In many ways Jim Johnson seemed an ordinary Missourian. He lived in the same small town in which he was raised. He served his country in the army, and continued that service in the National Guard. He worked and was married. He went to church. He had friends. He was a law abiding, productive citizen. Of course, all of that ended on December 9, 1991. And no one will ever be able to adequately explain why. (Please click here for video clip)

III. JIM’S LIFE IN PRISION

Jim’s faith in God has become only stronger since entering prison. He is active in the prison ministry program earning the respect of volunteers, inmates and prison staff. People who have worked with Jim in the ministry program can best explain this.

Jim an Asset to the Prison - [redacted], a construction project manager, (please click for video clip) volunteers at the prison weekly. He helps conduct a religious service, and has come to know Jim through that effort. (Please click for video clip) [redacted] describes Jim as a strong supporter of the prison ministry (please click for video clip) and a positive influence (please click for video clip). [redacted] describes Jim as a leader and morale builder. (Please click for video clip) Reverend [redacted], a retired minister, (please click for video clip) also volunteers at the prison. Jim participates in prayer meetings with Reverend [redacted]. (Please click for video clip) At the close of the meetings, Reverend [redacted] asks Jim to lead the participants in song. (Please click for video clip) Like [redacted], Reverend [redacted] sees something special in Jim. (Please click for video clip) Reverend [redacted] was the official Chaplain at Potosi between 1989 and 1999. (Please click for video clip) In that position he got to know Jim. Jim served as his clerk. (Please click for video clip) Reverend [redacted] saw Jim as an asset to the chapel and Christian community at Potosi. (Please click for video clip) And he was aware that volunteers at the prison saw him the same way. (Please click for video clip) Reverend [redacted] recognized Jim as a good prisoner, who had a strength about him. (Please click for video clip) [redacted], another volunteer in the prison ministry, has also gotten to know Jim. He writes passionately about him in a letter to the Governor, which is attached as Exhibit 4. (Please click here for letter)

Prison Officials Say Good Things - [redacted] knows that the prison staff respects Jim. He has heard officials speak well of Jim. (Please click for video clip) Reverend [redacted] has heard the same thing. (Please click for video clip) Jim’s brother [redacted] has also heard good things about Jim from the guards. (Please click here for video clip)

Jim Tries to Serve the Lord - Jim knows the pain he has caused (please click for video clip), and he feels that God has a plan for him in prison. (Please click for video clip) He has a strong devotion to God. (Please click for video clip). He tries to help inmates come to know God. (Please click for video clip)

Jim’s Brother’s Prison Visits - Jim’s brother [redacted] visits Jim in prison. He is not surprised that Jim is active in the prison ministry. He says that this is the way Jim always was. (Please click here for video clip) [redacted] loves his brother, and Jim’s execution will have a deep emotional impact on him. (Please click here for video clip)

IV. JIM’S REMORSE

Jim is very sorry for the killings. (Please click for video clip) He knows he has caused many families horrible pain, and the killing of Pam Jones especially haunts him. (Please click for video clip) He knew Mrs. Jones and her husband Sheriff Kenney Jones, and he cannot understand how this happened. (Please click for video clip) He hopes that the families of the victims can somehow find peace. (Please click for video clip)

V. THE GOVERNOR SHOULD SPARE JIM’S LIFE

Those who know of Jim’s life in prison believe that his life should be spared. Reverend [redacted] wishes he knew the words to persuade the Governor. (Please click for video clip) Reverend [redacted] believes Jim’s death a waste and asks that the Governor allow Jim to live. (Please click for video clip) [redacted] will mourn Jim’s loss like the loss of a brother. (Please click for video clip) He believes Jim’s death will be a loss to society. (Please click for video clip) Jim himself wants to live. He wants to continue his work in the prison ministry, but he his ready for God’s will. (Please click for video clip)

VI. CONCLUSION

Jim Johnson was a valuable member of society before December 9, 1991. He continues to be a valuable member of society after December 9. In some ways he has become more valuable. He has brought religion and spiritual healing to men sorely in need of it. He has been an example to his fellow inmates and to the volunteers and staff alike.

What happened December 9 was something that is at the limits of our ability to comprehend. But what we do know, by Jim’s life before and by Jim’s life after, is that it was a horrible anomaly. We don’t need psychiatrists and psychologists to tell us that. Our common sense tells us that.

If our State is in the business of revenge and retribution, the Governor’s decision is not a difficult one. He can ignore Jim Johnson’s life and service and allow him to be executed. Rather, if our State stands for hope, if it recognizes that Jim’s life in prison has meaning and that he is in fact an asset, if this State believes in redemption and forgiveness, the Governor’s decision is more difficult.

The right decision is the difficult decision because there are people who are blind to redemption and forgiveness. There are people who cannot understand even what common sense should tell them. And there are forces that take advantage of that blindness and lack of understanding and channel it into political hate and demagoguery. It has already been done to block a judicial career from advancing. If the Governor makes the right decision he too will face this hate, and it will be difficult for him. But he can find solace in the knowledge that the antidote for hate is love.

Wherefore, we respectfully request that the Governor commute Jim Johnson’s sentence of death to life with no possibility of parole.

Respectfully Submitted,

Charles W. Gordon, Jr., MO Bar #32985
Hubbell Sawyer Peak O’Neal & Napier
Kansas City, Missouri 64105-1914

Patrick J. Berrigan
Watson & Dameron, L.L.P.
Kansas City, Missouri 64108
ATTORNEYS FOR PETITIONER

*A Sedalia, Missouri psychologist who examined Jim just two months after the killings, firmly believes that Jim was clinically insane at the time of the crime. While her testimony was never presented in Jim’s case, she has addressed this issue in a letter to the Governor attached as Exhibit 1. (Please click for Exhibit 1) Unfortunately, explaining the insanity defense in Jim’s case only became more difficult when Jim’s trial lawyers made a tremendous mistake and presented what turned out to be false evidence relating to the insanity issue. This mistake is explained in Exhibit 2. (Please click for Exhibit 2) The trial lawyers’ mistake was the basis for Missouri Supreme Court Judge Ronnie White’s controversial dissent in Jim’s case, which was used unfairly to deny him an appointment to the federal bench. The Supreme Court opinion with Judge White’s dissent is attached as Exhibit 3. (Please click for Judge White’s dissent)

Amnesty International (Germany)

USA (Missouri): James R. Johnson, white, aged 52

Jim Johnson is scheduled to be executed in Missouri on 9 January 2002. He was sentenced to death in 1993 for the murder of three police officers and the wife of another officer in December 1991.

Moniteau County Deputy Sheriff Les Roark was shot at Jim Johnson's home after he arrived to investigate a domestic disturbance. Johnson then drove to the home of the Sheriff where a Christmas party was in progress. He opened fire, killing the Sheriff's wife, Pam Jones. He drove to the home of Deputy Sheriff Russell Borts and shot him through the window. Deputy Borts survived. Johnson then went to the Sheriff's Office, where there were officers from a number of jurisdictions. Cooper County Sheriff Charles Smith was shot dead as he came out of the building. Miller County Deputy Sandra Wilson was shot and killed a few moments later.

At his trial, Jim Johnson pleaded "not guilty by reason of mental disease or defect". The defence position was that he suffered Post-Traumatic Stress Disorder (PTSD) as a result of his wartime experiences in Vietnam, and that he had experienced Vietnam-related flashbacks on the night of the murders which made him believe that he was confronted by the enemy and rendered him incapable of appreciating the wrongfulness of his conduct.

In his opening statement, the defence lawyer drew attention to a perimeter of rope and tin cans set up around Johnson's property, a foil wrapper in the garage, and the flattened tires on his car. He theorized that Johnson, as in wartime, had set up the tin-can-rope perimeter to warn him of anyone approaching, that he ate a baked potato which had been cooked in foil while preparing to go out on a military mission, and that he had disabled his vehicle by slashing the tires in order that the enemy could not use it.

This defence quickly unravelled, and the lawyer's lack of preparation was revealed, when the state called witnesses who said that police officers, while waiting for Johnson to return from the shootings, had set up the rope perimeter, left the foil, and flattened the tires of the car to prevent Johnson from using it. The prosecution capitalized on the defence lawyer's error by asserting that it was just one illustration of the defendant's lies behind his PTSD defence. Three experts testified for the defence that Johnson suffered from PTSD, but the jury convicted him on four counts of first-degree murder and sentenced him to death on all four counts.

In 1998, the Missouri Supreme Court upheld the conviction and death sentence, rejecting the claim that inadequate legal representation had undermined the fairness of the trial and the reliability of its outcome. One of the five judges dissented saying that Johnson should receive a new trial. Judge Ronnie White wrote: "Defense counsel's unprofessional failure to interview [the prosecution witnesses] led the defense to make demonstrably false claims in its opening statement, claims that utterly destroyed the credibility of the PTSD theory before the defense even presented any evidence... I find it reasonably likely that a jury that had not seen the defense destroy its own credibility on this issue would have been sufficiently receptive to the expert diagnosis of a mental disease or defect to permit a reasonable likelihood of a different result... While Mr Johnson may not, as the jury found, have met the legal definition of insanity, whatever drove Mr Johnson to go from being a law-abiding citizen to being a multiple killer was certainly something akin to madness. I am not convinced that the performance of his counsel did not rob Mr Johnson of any opportunity he might have had to convince the jury that he was not responsible for his actions". Jim Johnson is reported to be a model inmate who is respected by staff and inmates and serves as a Christian spiritual leader in the prison.

BACKGROUND INFORMATION

Amnesty International opposes the death penalty unreservedly, and believes that it can make no constructive contribution to efforts to combat violent crime. More than 100 countries are abolitionist in law or practice. Since the USA resumed executions in 1977, 749 people have been put to death, 53 of them in Missouri. There have been 66 executions in 2001.

International standards require that capital defendants have "adequate legal assistance at all stages of proceedings". The UN Commission on Human Rights has adopted resolutions urging retentionist countries "not to impose the death penalty on a person suffering from any form of mental disorder or to execute any such person".

In 1999, Judge Ronnie White, the dissenting judge in Johnson's unsuccessful appeal, was nominated by President Clinton to be a federal judge. The US Senate voted to reject the nomination. A Republican Party campaign against the nomination was led by Missouri Senator John Ashcroft. He depicted White, the first African-American judge to sit on the Missouri Supreme Court, as "pro-criminal" in part because of his perceived reluctance to support death sentences. Yet Judge White had affirmed the death sentence in 41 out of 59 capital cases that had come before him, and in 10 out the 18 cases in which he voted against the death sentence, he was in the company of a unanimous court. Judge White remains on the Missouri Supreme Court. John Ashcroft has since become US Attorney General.

RECOMMENDED ACTION: Please send appeals to arrive as quickly as possible, in English or your own language, in your own words: expressing sympathy for the family and friends of the four murder victims in this case, and stressing that you do not seek to excuse the violent manner of their deaths; expressing concern that the errors of Jim Johnson's lawyer dealt a severe blow to his defence of mental illness, raising doubts as to the reliability of the outcome of the case; noting the dissenting opinion of Judge Ronnie White that Jim Johnson has been denied adequate legal representation, citing international standards; noting that Jim Johnson has been a model prisoner, respected by staff and inmates; calling on the governor to commute this death sentence and to support a moratorium in his state.

Columbia Daily Tribune

"Johnson Execution Set for Wednesday," by Chris Berk.

(January 7, 2002) Barring a last-minute sentence reduction from Gov. Bob Holden, the first Missouri execution of 2002 will proceed as planned early Wednesday morning, as a California, Mo., man will die for a 1991 shooting rampage that killed four people.

Jim Johnson is scheduled to die from lethal injection at 12:01 a.m. Johnson, 51, shot and killed Moniteau County Deputy Leslie Roark, Pam Jones, wife of county Sheriff Ken Jones, Cooper County Sheriff Charles Smith and Miller County Deputy Sandra Miller on Dec. 9, 1991. Johnson made several appeals concerning the four death sentences, which the Missouri Supreme Court upheld. The U.S. Supreme Court in 1998 refused to review his appeal. Johnson will be the 54th person to be executed in Missouri since the 1989 reinstatement of the death penalty.

Lawyers for Johnson, a Vietnam War veteran, claimed he suffered from post-traumatic stress disorder from his stint in the Army in 1970. He was convicted in Lebanon, Mo., in 1993 and sentenced to death. Johnson’s 1998 appeal later served as political cannon fodder, as then-U.S. Sen. John Ashcroft used Missouri Supreme Court Judge Ronnie White’s dissent in the death penalty case to block White’s nomination to a federal judgeship in St. Louis. Johnson’s lawyer, Chuck Gordon, met with Holden’s staff last week to petition for clemency. Gordon, citing Johnson’s position as a model prisoner, said that December day was an aberration. "He was a law-abiding, Christian, church-going, well-respected member of his California community," Gordon said. "He participates in prison ministry activities" and "is respected by volunteers, inmates and staff alike. When you look at those things, before December 9 and after December 9, your common sense just tells you December 9 was a horrible anomaly."

Jeff Stack of the Mid-Missouri Fellowship of Reconciliation, which will help lead a Jefferson City vigil outside the Capitol from 10 a.m. to 2 p.m. tomorrow, said that Johnson’s guilt is irrefutable but his service to society should continue. "He’s been a remarkable individual in the prison, assistant to the chaplain last eight or nine years," Stack said. "He’s been giving although he’s been living under the shadow of death. He can continue to give." Stack’s group will also hold a vigil from 5 to 6 p.m. tomorrow at the Boone County Courthouse and at 6:30 p.m. at St. Luke’s United Methodist Church at 204 E. Ash St.

Missouri Attorney General Jay Nixon said Johnson’s lawyers did the best they could with a difficult situation but because of the clear-cut nature of the crime, options were limited. "He was completely guilty and confessed to murdering four innocent victims in a hunting-down type of fashion that resulted in a night of terror for an entire county," Nixon said this morning. "There were not a plethora of strategic options for the defense team." Nixon also recalled the effects that rippled through the Missouri law enforcement community after the slayings. "I think that it really reminds a lot of us in law enforcement about how tough the job is, how you put your life on the line," he said.

The Boone Report

Mass murder in Missouri; The story of a brutal mass murder, a liberal judge, and how this relates to the confirmation of Attorney General John Ashcroft. (Boone Report Volume 2, No. 1 Jan/Feb 2001)

The Murders

The story began in rural Moniteau County, Missouri. On the night of December 9, 1991, one James R. Johnson exploded in an argument with his third wife and stepdaughter and threatened both with a loaded rifle. The stepdaughter ran to a neighbor’s house and called a teacher, who phoned the Sheriff’s office. Shortly afterward, Johnson met the girl outside and persuaded her to return home to discuss the situation with her mother. Deputy Sheriff Les Roark then arrived at the house. Johnson called his wife and her daughter to the door, and both told the deputy they were all right. When Deputy Roark turned to walk back to his patrol car, Johnson drew a .38 from the back waistband of his pants and shot the officer twice at point-blank range. With blood-splattered face, he walked inside, sat down at the kitchen table, and said, “I’m in trouble now.” Johnson heard Roark moaning in agony and realized he hadn’t finished the job. He went back outside and fired the fatal shot through the deputy’s head. He then grabbed more ammunition, a change of clothes, a Thermos, and drove off.

About an hour later Johnson arrived at the home of Moniteau County Sheriff Kenny Jones. Jones had already left to examine the scene of the Roark murder. But his wife, the mother of four young children, was at home conducting a Christian Women’s Fellowship meeting. Johnson fired his .22 semiautomatic rifle through a window. Five shots hit Mrs. Jones, killing her instantly.

Johnson then proceeded to the home of Deputy Russell Borts, who was talking on the phone near a lighted window. Johnson fired from outside, hitting the officer four times. Deputy Borts lived, but had to endure years of medical treatment.

Johnson next proceeded to the area of the Moniteau County Sheriff’s office. By that time numerous law enforcement officers from nearby counties has arrived to join the manhunt. Johnson ambushed Cooper County Sheriff Charles Smith, wounding him. He then stood over the fallen sheriff and fired a shot into his head, killing him. At that point Deputy Sheriff Sandra Wilson arrived on the scene. As the officer got out of her patrol car, Johnson fired again, killing her instantly.

Johnson then made his way to the home of 82-year-old Dorothy Miller and held her hostage the rest of the night and most of the following day. By the evening of the 10th she persuaded him to let her leave. Johnson was arrested and made a detailed confession.

The Trial

There being no doubt as to Johnson’s guilt, his defense attorneys elected to plead not guilty by reason of insanity. They claimed he was suffering from Post Traumatic Stress Disorder (PTSD) from his four-months service in Vietnam, and that on the night of the crimes he thought he was firing at Viet Cong. The case was a weak one, especially since, in his confession, Johnson had recalled in much detail that his victims were law enforcement officers, not enemy soldiers. Even Dr. Kurt Guindon, a psychologist hired by the defense, concluded that Johnson did not have PTSD. The defense decided against using Guindon, but the prosecution called him as a witness. The jury was not swayed by the insanity defense. They found Johnson guilty of all four murders. They further determined that aggravating circumstances were present and voted to give Johnson the death penalty on all four counts.

Johnson appealed to the Missouri Supreme Court. Four justices voted to uphold the verdict. But Justice Ronnie White dissented. He concluded that the verdict should be overturned on the grounds that Johnson’s lawyers did not do an effective job of arguing the insanity defense. Justice White’s dissent concluded: “I would hold that Mr. Johnson received ineffective counsel, was prejudiced thereby, and is entitled to a retrial.”

The Aftermath

In 1999 then-President Clinton nominated Justice Ronnie White to be a U.S. District Judge for the Ninth Circuit. The nomination provoked a firestorm of opposition in Missouri. Justice White had a reputation for being soft on crime. The Johnson case was only the best known of several in which he had voted to overturn a conviction on a technicality. The Missouri Association of Chiefs of Police and 77 of the county Sheriffs (many of whom were Democrats) opposed the nomination. After examining the facts, then-Senator John Ashcroft announced his opposition. He pointed out that, as one of five state Supreme Court justices who was usually outvoted by his colleagues, White could do only a limited amount of harm. But as a U.S. District Court judge, he would have the power to dismiss criminal cases before they went to trial. On October 5, 1999, the Senate rejected White’s nomination by a vote of 45 for, 54 against, and one absent.

Liberal groups made the absurd claim that Ashcroft opposed the nomination because Ronnie White is black. (Ironcially, many of Ashcroft’s opponents opposed the nomination of Clarence Thomas to the U.S. Supreme Court.) White claimed that his record had been misrepresented. But his vote in the Johnson case and similar cases, and the overwhelming opposition of law enforcement groups, speaks for itself.

The question should not be why John Ashcroft opposed the White nomination. The question should be why 45 Senators, including NC’s John Edwards, voted to confirm Justice White. Do these Senators agree with his rulings in criminal cases? The mainstream media gave scant coverage to the Johnson case. Most readers of this article will be learning the facts for the first time. [James Johnson used only two firearms: a .38 pistol and a .22 semi-automatic rifle. Neither fits anyone’s definition of an “assault weapon”.]

State of Missouri v. James R, Johnson, 968 S.W.2d 123 (Mo. 1998)

OPINIONBY: Stephen N. Limbaugh, Jr.

Appellant, James R. Johnson, was convicted by a Laclede County jury of four counts of first degree murder and was sentenced to death on all four convictions. His motion for postconviction relief under Rule 29.15 was overruled. Because the death penalty was imposed, his appeal lies exclusively with this Court. Mo. Const. art. V, sec. 3. The judgments are affirmed.

I. FACTS

Johnson does not dispute the sufficiency of the evidence. That evidence, which we review in the light most favorable to the verdict, [**2] State v. Storey, 901 S.W.2d 886, 891 (Mo. banc 1995), reveals the following: Johnson lived in rural Moniteau County with his wife, Jerri Wilson, and her 19 year old daughter, Dawn Becker. Johnson and Becker had an uneasy relationship and fought a great deal. On the evening of December 8, 1991, the two of them were involved in an argument during which Johnson cried out that "he couldn't take it anymore" and told his wife that her daughter had to move out. His wife replied that if her daughter moved out, so would she. Johnson then told her to choose between her daughter and him, and when his wife chose her daughter, [*126] Johnson ordered them both out of the house. At that point, they refused to be forced out, so Johnson produced a loaded rifle and pointed it at his wife. When she did not back down, Johnson pointed the rifle at Becker. Johnson then grabbed Becker in a choke hold and forced her out of the door at which time she fled.

Within a few minutes, Johnson loaded some guns and ammunition into his car and drove away. He returned later with Becker in his car and told his wife that he wanted to work things out. Shortly thereafter, Deputy Les Roark of the Moniteau County Sheriffs Department [**3] arrived at the house to investigate a domestic disturbance. Roark asked to speak with Becker, but Johnson refused. His wife brought Becker to the door and told Roark that they were both fine. As Roark was walking back to his car, Johnson pulled out a .38 caliber pistol, stepped onto the porch, and shot Roark twice, once in the rear, and once in the back of the hand. Johnson then stepped back inside, but when he heard Roark moaning, he went again to the porch and shot Roark in the forehead, killing him. Johnson soon left the house in the car with his guns and ammunition, and with clothes and a thermos, and drove to the home of Sheriff Kenny Jones, whose family was having a Christmas party. Using a .22 caliber semi-automatic rifle, Johnson opened fire on a group of people he saw through the bay window. Pam Jones, the wife of the sheriff, was shot five times, once in the shoulder, once in the face, once in the neck, and twice in the back of the head. She died in her home in front of her family.

Johnson next appeared outside the home of Moniteau County Deputy Sheriff Russell Borts. Johnson shot Borts through a window while Borts was talking on the telephone. Although Borts was shot four [**4] times, once in the hand, twice in the chest, and once in the face, he survived, but he was still under medical care at the time of the trial. After shooting Borts, Johnson went to the sheriffs office where peace officers from numerous jurisdictions had gathered. When word of the attack on Borts arrived, the officers rushed out from the sheriffs office. Johnson, who was lying in wait, fired on the emerging officers. Cooper County Sheriff Charles Smith was shot four times with a .22 caliber semi-automatic rifle, once in the face, once in the right side, once in the upper back, and once in the head. He died from the shot to the head.

Moments later, Miller County Deputy Sandra Wilson arrived at the sheriffs office, stopped her patrol car in the street, and slid to the passenger side. As she started to climb from the car onto the pavement, Johnson shot her through the heart with an 8-millimeter, bolt-action Mauser. Deputy Wilson died on the pavement. Johnson then fled to the back porch of the home of an elderly woman named DorthyMae Miller and hid there for the rest of the night The next morning, he confronted Mrs. Miller and hid in her house for most of the day, holding her hostage. [**5] During that time, Johnson admitted to Mrs. Miller that he had shot five people. That evening, Johnson allowed Mrs. Miller to leave the house so that she could attend a Christmas party where she was expected. Upon her release, Mrs. Miller notified authorities that Johnson was in her house. Soon thereafter, law enforcement officers surrounded her house and negotiated Johnson's surrender.

At trial, Johnson admitted the killings and defended on a plea of not guilty by reason of mental disease or defect under Chapter 552, RSMo. In presenting this defense, Johnson, a Vietnam veteran, claimed to be a victim of Post Traumatic Stress disorder (PTSD), that rendered him incapable of knowing and appreciating the nature, quality, or wrongfulness of his conduct. See sec. 552.030.

A. The Perimeter Evidence

The primary thrust of Johnson's entire appeal is a combined claim of prosecutorial misconduct and ineffective assistance of counsel arising from defense counsel's mistaken use of certain evidence to support the PTSD defense.

* * * * * * * * * Most likely, the defense theory failed not because of the mistaken use of the perimeter evidence, but on the overall weakness of the theory itself and the proof offered in support of the theory.

* * * * * * * * *

Johnson's detailed and intimate recitation of these events, together with his stated reasons for his conduct, seems wholly inconsistent with the defense of mental disease or defect. In effect, Johnson admitted that he had known what he was doing and why, and consequently, he was hard pressed at trial to fit the facts to the theory. In the end, this was the likely reason why the defense failed. Johnson's claims of prosecutorial misconduct and ineffective assistance of counsel are denied.

* * * * * * * * *

For the foregoing reasons, the judgments are affirmed. Stephen N. Limbaugh, Jr., Judge, Benton, CJ., Price and Robertson, JJ., concur; White, J., dissents in separate opinion filed; Covington and Holstein, JJ., not sitting.

DISSENTBY: RONNIE L. WHITE

While I would find the result troubling, I am compelled, nevertheless, to dissent. Defense counsel's unprofessional failure to interview Officers Opperman and Breen led the defense to make demonstrably false claims in its opening statement, claims that utterly destroyed the credibility of the PTSD theory before the defense even [**37] presented any evidence. While defendant has not, perhaps, demonstrated that this was outcome-determinative prejudice, as the majority opinion requires, that standard is too high. Under the proper standard, given the vagaries of a mental illness defense, I am convinced that there is a reasonable likelihood that, but for counsel's unprofessional errors, the result of either the guilt or sentencing phases of the trial would have been different.

II Unprofessional Conduct

While the conduct of the prosecution in this matter is, as the principal opinion notes, not especially praiseworthy, the evidence of purposeful, prosecutorial misconduct is equivocal, at best, and I am reluctant to condemn the prosecution on this record. As to the defense counsel, however, I have no such reservations. Although the principal opinion is correct in pointing out that defense counsel was initially careful in attributing the perimeter evidence to Mr. Johnson ("somebody went back to Johnson's house"), all caution was quickly abandoned as the defense told the jury, in no uncertain terms, that the defendant was that somebody: he set up a perimeter...., that's what you do in Vietnam, you renourish [**38] and rest while your buddies stand guard duty, only Jim had to play all the roles. ... He was on guard duty while he was resting and renourishing... And when he went on his recon mission, he thought, I'd better... disable the car so the enemy can't use it. So he flattened the tires. . . .

Intent as they were on making such extravagant claims about what this behavior revealed about their client's mental state, the defense team was remarkably cavalier in determining whether these assertions had any basis in fact. While it is true, as the State argues, that no evidence in the defense's possession indicated that someone else had done these things, no evidence pointed to Mr. Johnson, either. As defense counsel testified at the Rule 29.15 hearing, the defense decided that Mr. Johnson was responsible because it fit their experts' theory about what sort of behavior he might have engaged in: "the experts... thought that was a great piece of evidence for their testimony." Thus, the defense made the mistake of assuming that the evidence would show what they hoped it would show, instead of investigating to see what actually might be determined.

Even minimal investigation would have sufficed. [**39] The defense team was not required to depose every single endorsed witness. But the defense, if it was inclined to make so much of what went on in James Johnson's garage on the night of December 8th, was obliged to at least ascertain who was present at that location, and, at the very least, to interview those persons. Similarly, if the defense thought that the tire evidence was important, it should reasonably have attempted to contact a person who could confirm that the tires were, in fact, flat when the car was first found by the authorities. These witnesses were not hard to find. As defense counsel noted, he had nagging questions about why these particular officers had been endorsed and repeatedly asked the prosecution who they were. While the prosecution's investigator did apparently say "that they were just chain people and probably aren't going to use them, etc., etc." the equivocal answer of an opposing investigator does not relieve a reasonably diligent and cautious advocate of the duty to at least pick up the phone and ask these witnesses what their connection to the case was. Defense counsel did not do even that, and it caused them to make a critical error from which the defense [**40] never recovered.

While it may be true that the prosecution sprang a trap on the defense, it was a trap that defense counsel helped set through inadequate preparation and investigation and armed through its own overblown, factually unsupported statements about what happened the night of the killings. Reasonably cautious and zealous advocates would not have been so easily misled.

The principal opinion does not endorse the behavior of either side and, at least implicitly, recognizes that some breakdown in professionalism probably occurred here. Hence, where I really differ from the principal opinion is on the issue of prejudice. The majority applies too high a standard. While the prejudice standard is, as the majority states, whether there was a "reasonable probability" of a different result, n1 the principal opinion actually seems to be applying an outcome-determinative standard. Strickland explicitly rejects an outcome-determinative standard. n2 Thus, Mr. Johnson is not required to show that his counsel's unprofessional errors are the "most likely" reason why his defense failed, as the principal opinion holds. The United States Supreme Court reiterated this as recently [**41] as 1995, contrasting the "reasonable probability of a different result" standard with the higher, outcome-determinative standard, and also noting that this is not merely a sufficiency of the evidence standard. n3 The majority seems to apply the latter standard. Tellingly, for a case based entirely on a defense of mental illness, the principal opinion's review of the evidence does not mention any of the testimony of the three defense PTSD experts, instead choosing to focus solely on the inculpatory "raw facts." This disregard for essentially the entire defense case in assessing prejudice reflects an improper, sufficiency of the evidence standard. Certainly, I do not understand the principal opinion to hold that there is overwhelming evidence that Mr. Johnson was legally sane at the time of the killings. While I agree that there was sufficient evidence to convict, and am not necessarily convinced that the weakness of the case was not the "most likely" reason the defense failed, I find it is reasonably likely that a jury that had not seen the defense destroy its own credibility on this issue would have been sufficiently receptive to the expert diagnosis of a mental disease or defect to [**42] permit a reasonable likelihood of a different result.

As to the idea that the defense was able to mitigate the effects of its gaffe, I am unconvinced. The fact that the defense elicited testimony from the officers and the defendant explaining why the defense did not know that their client had not constructed the perimeter, and the fact that defense had their experts testify that the perimeter evidence was not important in their diagnosis of Mr. Johnson actually indicates the opposite. In my view, these efforts to distance the defense from this evidence show that the defense team knew how badly its credibility had been damaged and spent the entire trial vainly attempting to recover some shred of believability. In particular, the prosecutor, in his closing argument, did not think that the [**43] failure to ascertain who had created the perimeter evidence was unimportant. The prosecution's tactic in rebuttal was to "flash back" to defense counsel's opening argument and to recount what the defense had "promised" to prove to the jury. After reading at great length from defense's opening statement, the prosecutor vividly captured the devastating effect that statement had on the entire defense case: "Pure unadulterated lies to you. We have disproven each and every fact that the Defense said they were going to sell you on this Vietnam defense. The only land mines that this case is about are the ones the Defense has been stepping on all week."

Obviously, there is no question that Mr. Johnson killed the victims here. The question is whether he was sane when he did so. There was expert psychological testimony on both sides. I cannot say that it is not at [*138] least reasonably likely that a jury would have believed the PTSD theory if Mr. Johnson's counsel had not utterly discredited himself and the theory by tying it and the defense into a completely concocted scenario at the very outset of the case.

Penalty Phase Prejudice

Even more troubling to me is an issue that the principal opinion [**44] does not address: "When a defendant challenges a death sentence..., the question is whether there is a reasonable probability that, absent the errors [of counsel], the sentencer... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." n4 Clearly, the aggravating factors here are extremely grave. But there are clear mitigating factors as well: Mr. Johnson's previously law-abiding life, his service to his country, at least. While a reasonable juror might have felt that Mr. Johnson's mental difficulties did not rise to the level of legal insanity, it is reasonably likely that such a juror would find those mental problems, combined with Mr. Johnson's previous positive contribution to society sufficiently mitigating to warrant a sentence of life. Any such tendency was severely undercut by defense counsel's opening argument, which left the jury with the strong impression that any claims of emotional distress by Mr. Johnson were made up out of whole cloth. Absent this unprofessional error, it is at least reasonably likely that a jury would have found the balance of mitigating and aggravating factors differently.

Conclusion

This is a very hard case. If Mr. Johnson was in control of his faculties when he went on this murderous rampage, then he assuredly deserves the death sentence he was given. But the question of what Mr. Johnson's mental status was on that night is not susceptible of easy answers. While Mr. Johnson may not, as the jury found, have met the legal definition of insanity, whatever drove Mr. Johnson to go from being a law-abiding citizen to being a multiple killer was certainly something akin to madness. I am not convinced that the performance of his counsel did not rob Mr. Johnson of any opportunity he might have had to convince the jury that he was not responsible for his actions. This is an excellent example of why hard cases make bad law. While I share the majority's horror at this carnage, I cannot uphold this as an acceptable standard of representation for a defendant accused of capital murder. I would hold that Mr. Johnson received ineffective assistance of counsel, was prejudiced thereby, and is entitled to a retrial.

RONNIE L. WHITE, Judge