Citations:
State v. Johnson, 360 S.E.2d 317 (S.C. 1987) (Direct Appeal).
State v. Johnson, 410 S.E.2d 547 (S.C. 1991) (Direct Appeal II).
Johnson v. South Carolina, 503 U.S. 993, 112 S.Ct. 1691, 118 L.Ed.2d 404 (1992) (Cert. Denied).
Johnson v. Catoe, 520 S.E.2d 617 (S.C. 1999) (State Habeas).
Johnson v. Moore, 164 F.3d 624 (4th Cir. 1998). (Federal Habeas).

Final Meal:
Fried shrimp, fried oysters, french fries, chocolate cake and iced tea.

Final Words:
"I love you. I'll see you later."

Internet Sources:

Pro Death Penalty.com

UPDATE: Gov. Jim Hodges has denied clemency for convicted killer Richard Charles Johnson, who is scheduled to die by lethal injection Friday. Hodges said he had spoken with the sister and the son of slain state trooper Bruce Smalls. They "expressed to me their belief that the jury and court's decision should not be disturbed," Hodges said. "Upon a thorough review of the record and careful consideration of all information provided, I am convinced that Mr. Johnson is guilty as charged. The jury's sentence must be carried out. Clemency is not granted."

Johnson, 39, has been sentenced to death twice for killing Smalls during a 1985 traffic stop along Interstate 95 in Jasper County. He was set to die in October 1999, but the state Supreme Court stopped that execution the day before it was scheduled. Before making his decision Thursday, Hodges spoke with Smalls' family, spokeswoman Cortney Owings said. Hodges also considered letters from state religious and legal leaders as well as the state chapter of the National Association for the Advancement of Colored People opposing the execution. Johnson is white, while the slain trooper is black. A former chief justice of the state Supreme Court joined several religious groups and more than 2 dozen former prosecutors in asking Hodges to grant clemency for Johnson. One of those writing letters to Hodges on Johnson's behalf is retired state Chief Justice Ernest Finney.

In 2000, the state Supreme Court ruled that 1 of Johnson's co-defendants was not credible when she recanted her testimony given at Johnson's trial and said she killed Smalls. Finney was not part of that 3-2 vote, but he said the razor-thin margin wasn't enough to "justify the imposition of the ultimate punishment. When the court divides three to two on the question of whether a man on death row is actually guilty of committing the crime, I believe clemency is warranted," Finney wrote. The decision came after state NAACP President James Gallman urged Hodges to let Johnson live. The civil rights group opposes using the death penalty as a crime deterrent, in part because studies show death penalties are used disproportionately for poor and minority convicts, he said. Defense attorneys say they have a statement from co-defendant, Connie Sue Hess, saying she is the trooper's actual killer. Prosecutors said Hess has given more than a half-dozen different stories over nearly 15 years before confessing in 1999. A 2nd co-defendant Curtis Harbert and Hess originally told police Johnson killed the trooper, and both were let out of jail after Johnson was convicted and sentenced to death. Harbert has never changed his testimony. Hess has since been living in a home for the mentally ill in Nebraska.

TheState.Com

"Lethal Injection Ends Life of Convicted Killer." by Rick Brundrett and Cliff Leblanc. (May 4, 2002)

Richard Charles Johnson, the twice-convicted cop killer who narrowly missed being executed in 1999, couldn't escape a second time. Johnson, 39, died at 6:18 p.m. Friday by lethal injection at the S.C. Department of Corrections' Capital Punishment Facility off Broad River Road in Columbia.

Johnson, of Morehead City, N.C., was executed for the fatal shooting of state Highway Patrol Trooper Bruce Smalls during a 1985 traffic stop on I-95 in Jasper County. He was the first inmate executed in South Carolina since 2000 and the 26th inmate to die since state lawmakers restored the death penalty in 1977.

Because Johnson was white and Smalls black, Johnson's defense team courted African-American leaders to support his clemency request in hopes of easing pressure on Gov. Jim Hodges, a Democrat running for re-election. Hodges on Thursday denied the request, allowing the execution to go forward. Executions involving white killers of black victims have been rare. Friday's was only the 12th of 773 executions nationwide to fit that criteria after the death penalty was reinstated, according to the Death Penalty Information Center. It was the fourth involving South Carolina. The U.S. Supreme Court denied Johnson's last appeal Friday morning.

Johnson, wearing a green jumpsuit and strapped to a gurney during the lethal injection, uttered a loud groan at 6:03 p.m. Friday before turning his face to the side and closing his eyes, according to media representatives who witnessed the execution. He appeared calm and relaxed until his death 15 minutes later. Before dying, Johnson mouthed the words, "I love you," and, "See you later" to his younger brother, John Johnson, who was among the small group of witnesses, the reporters said. At one point, Richard Johnson put his hand to his chest in an apparent signal to his brother, the only member of Johnson's family to attend the execution.

Before his death, Richard Johnson's lawyer, John Blume, read a handwritten statement by Johnson to the witnesses: "I would like to thank Trooper Smalls' mother, Thelma Blue, and other members of the Smalls' family who asked the governor to commute my sentence. If everyone in the world had the courage and compassion they have shown, it would be a much better place. "Keep up the fight against the death penalty," Johnson added.

About 75 death-penalty opponents attended an hourlong protest Friday outside the Governor's Mansion on historic Arsenal Hill in Columbia. "His last words to me were, 'I love you; take care,'" Blume said after a silent vigil at the mansion. "Right when they were strapping him down, he said, 'It's been a helluva ride,'" Blume said. "What he meant was he and I had been through so much. We came so close to winning. We had had so much hope and expectation."

Lori Crawford, Johnson's only sister, spoke to him for the last time at 5:05 p.m. Friday. "He was crying when he called me," said the 37-year-old Morehead City, N.C., resident. "He said he wanted to tell me goodbye. He was trying to control himself. He tried to hang up. I wasn't going to let him. I'd rather hear him cry than to hang up." Crawford, like many of Johnson's backers, blamed Hodges for denying clemency. "My personal opinion is that he made his decision based on his political career," she said. "I think it's terrible that my brother's life was taken because he couldn't stand up for what was right."

Johnson's mother, Nelda Johnson, didn't speak at the vigil. She cried quietly with relatives, defense attorneys and others who turned out with signs proclaiming, "Don't kill for me" or wore pins bearing Johnson's photograph and the words, "An innocent man murdered by the state of S.C." None of Smalls' family attended. In denying Johnson's clemency, Hodges said Smalls' sister and his son expressed to him that the "jury and court's decision should not be disturbed."

Hodges said he based his decision mainly on Johnson's admission during his trial that he had ruined the lives of others. No South Carolina governor has granted a clemency request since the death penalty was restored in 1977. The Palmetto State ranks eighth out of 38 states in the number of executions since 1976, according to the most recent statistics from the Death Penalty Information Center. The state Supreme Court postponed Johnson's execution in 1999, a day before it was scheduled, after Connie Sue Hess, who was riding with Johnson when Smalls was shot, claimed she killed the trooper. It was the first time the court had stayed an execution since the death penalty was reinstated. But a divided court last year said Johnson didn't deserve a new trial, ruling that Hess, who suffers from mental illness, wasn't a credible witness because she gave numerous conflicting statements.

Hess and Curtis Harbert, another hitchhiker who was riding with Johnson when Smalls was killed, were granted immunity in exchange for their testimony against Johnson, defense lawyers contended. Johnson, who had been drinking before the shooting, maintained he couldn't remember what happened. "It is hard to explain how frustrating it is to be here year after year when you have no memory of what happened," he said in his written statement. "It is also hard to understand a system that would allow two people charged with a crime to go free and take another man's life."

Johnson was first convicted and sentenced to die in 1986. The S.C. Supreme Court reversed his conviction, but he received the same sentence in a second trial in 1988. It was upheld on appeal. Johnson also had been serving a life sentence for killing Daniel Swanson. It was Swanson's recreational vehicle that Johnson had been driving when Smalls pulled him over. Johnson pleaded guilty in Swanson's death.

Fight the Death Penalty USA (Greenville News & Rick Halperin)

Richard Charles Johnson, 39, 2002-05-03, South Carolina

His final appeals rejected by the highest court in the land, Richard Charles Johnson was put to death at 6:18 p.m. Friday for the 1985 slaying of a state trooper. "It is hard to explain how frustrating it is to be here year after year when you have no memory of what happened, and not to be able to defend yourself," Johnson wrote in a 4-paragraph statement released from the death chamber. "It is also hard to understand a system that would allow 2 people charged with a crime to go free and take another man's life," he wrote. Johnson's lawyers insisted the state may have killed the wrong man.

Lisa Goddard of WIS-TV in Columbia, a witness to the execution, said Johnson maintained eye contact with his brother, John Johnson, until he fell unconscious. "I love you brother and I'll see you later," she quoted him as saying. John Johnson, the only Johnson family member among the 9 witnesses, thumped his chest with his fist and cried. Wearing a green jumpsuit, Johnson lay on a gurney as his appeals attorney John Blume read Johnson's statement.

The Associated Press reported that the U.S. Supreme Court on Friday morning denied 3 applications from Johnson's lawyers that could have stopped the execution. The U.S. Supreme Court was Johnson's last resort after the state Supreme Court denied another last-minute appeal on Monday and Gov. Jim Hodges denied clemency on Thursday. Through his attorneys, Johnson thanked his supporters and lawyers for their efforts to spare his life Thursday afternoon, after Hodges refused to stop the execution.

Earlier in the day, The Rev. Jesse Jackson, through his Rainbow Push Coalition, denounced Hodges for refusing to grant clemency to Johnson. "Tonight the state of South Carolina is gearing up for the execution of a man who well could be innocent of the charges for which he has spent the last 16 years on death row," Jackson said. Noting that Illinois Gov. George Ryan had called for a moratorium on all executions in that state, Jackson said such a move "was a true act of courage."

"As I contrast Gov. Ryan's leadership with what is happening in my home state of South Carolina under Gov. Jim Hodges, my heart grows heavy. I am left wondering what possible good can come from Gov. Hodges' refusal to do what is right," Jackson said. Sadly, it appears that election-year politics may be playing a larger role in Gov. Hodges' decision than factual analysis. Politicians like Gov. Hodges, guided by what they perceive to be popular opinion, sacrifice an opportunity to come down on the right side of history," Jackson said.

Others also have focused their ire over the death penalty on the Democratic governor. About a dozen death penalty opponents demonstrated outside the Governor's Mansion Friday. Another dozen protestors marched outside the state prison on Broad River Road where Johnson was executed. "The governor is supposed to be the last safety valve in the system, and one of the primary reasons the clemency power exists is to prevent the execution of a potentially innocent person. Ricky Johnson's execution demonstrates the ineptitude of the capital appeals process and the impotence of clemency in South Carolina," said a statement issued by the coalition.

Without a last-minute stay by the U.S. Supreme Court, Johnson, 39, will be executed by lethal injection in the state's Capital Punishment Facility in Columbia at 6 p.m. Johnson becomes the 1st condemned inmate to be put to death this year in South Carolina and the 26th overall since the state resumed capital punishment in 1985.

South Carolina Attorney General

(Columbia, S.C.) Attorney General Charlie Condon announced today that the South Carolina Supreme Court has set Friday, May 3, 2002 as the date for the execution of Richard Charles Johnson. Johnson, a Jasper County death row inmate, has twice been sentenced to death for the murder of State Trooper Bruce Smalls on September 27, 1985.

“It is time to bring this case involving a brutal slaying of a law enforcement officer to closure,” Condon said. “It is time for justice to be carried out.”

Johnson gunned down Trooper Bruce Smalls almost 17 years ago during a traffic stop on I-95 in Jasper County. He came within one day of being executed in 1999 when the State Supreme Court stayed his execution because Connie Sue Hess, riding with Johnson at the time, claimed she murdered Trooper Smalls. However, last June, the High Court ruled that, based upon inconsistent statements Hess made to police, it was unlikely a jury would believe her story. Condon has said Hess lacks credibility because of a history of mental illness.

Last week, the South Carolina Supreme Court denied a Habeas Corpus Petition and Motion for Stay of Execution filed by Johnson. Previously, Johnson had exhausted all direct appeals and all post-conviction relief options as well as federal habeas corpus alternatives. In addition, he has unsuccessfully brought two State habeas corpus petitions.

“This Defendant has been given every opportunity and every shadow of a doubt in this case,” Condon said. “Trooper Smalls’ family, friends and fellow officers, as well as the people of South Carolina, deserve finality for this brutal murder of a law enforcement officer simply doing his duty.”

South Carolina Department of Corrections

Detroit News

Bad behavior is what gets most people consigned to death row, but bad luck gets them on the execution calendar during an election year. Meet Richard Charles Johnson, the most recent addition to the opinion-poll execution roster. Johnson was executed in South Carolina last week amid a firestorm of controversy, more than reasonable doubt and, you guessed it, a gubernatorial race.

Incumbent Gov. Jim Hodges, a Democrat, faces strong competition from Republicans, whose leading contender seems to be fire-breathing, pro-death-penalty Atty. Gen. Charlie Condon. To objective observers, Johnson's bid for clemency was a no-brainer. The facts were compellingly in his favor. But to those who measure time by elections, he didn't stand a chance. Johnson had to die because -- make no mistake -- we are tough on crime 'round here.

Among the facts that would have made clemency an easy choice for Hodges is that Johnson was convicted of killing a South Carolina state trooper on the testimony of two hitchhikers he picked up after stealing a motor home. The owner of the motor home, C. Daniel Swanson of Fairfax, Va., also was killed. Johnson pleaded guilty in Swanson's death and was sentenced to life. The two hitchhikers, who were granted immunity from prosecution, were of dubious integrity. One of them, Connie Sue Hess, told police immediately after Johnson was convicted of murder that she had lied on the stand when she fingered him as the triggerman. She was the one who shot the trooper, she said.

But then, what is Hess' word? On still another occasion, she said that her fellow hitchhiker, Curtis Harbert, pulled the trigger. She also blamed Harbert for killing Swanson. Thus, on the testimony of a woman who changed her story at least twice, Johnson was convicted and killed. Curiously, Hess' confession was ruled unreliable. Confounding Johnson's case was the absence of any physical evidence. When Johnson's hands were tested for gunpowder residue, none was found. The state failed to test for residue on Hess' and Harbert's hands during the critical time period. In other words, the state convicted Johnson without physical evidence and without a credible witness. Such are the surface details.

Beneath the surface, the details are these: Johnson was white; the trooper who died in 1985, Bruce K. Smalls, was black. In a state that still flies the Confederate battle flag on its statehouse grounds, could a Democratic governor grant clemency to a white man convicted of killing a black man? That would be a big "no." Most important, Hodges faces re-election in November, most likely against Condon, who has few peers in the tough-on-crime department. Nationally, Condon played a key role in lobbying Congress to withdraw funding from death-penalty resource centers and is known as a crusader against death-penalty appeals.

Back home, he's best known for handcuffing crack-addicted pregnant women to the delivery table during childbirth and hauling them off to prison immediately afterward for failing to kick their drug habit during pregnancy. Let's just say, Condon as a pregnant voodoo doll would be a big seller in South Carolina maternity gift shops. No one envies a governor's awful duty to determine when and whether to grant clemency. But increasingly, death-penalty cases have become vehicles for political grandstanding rather than fresh opportunities for justice. Hodges is but the most recent among a host of governors who opt for someone else's death over their own political demise.

President George W. Bush, while governor of Texas, reportedly presided over an execution about every two weeks. Few can forget the high-profile execution of ax murderess Karla Faye Tucker, who gained media attention because (a) she was a woman; (b) she was telegenic; (c) she was a born-again Christian, apparently rehabilitated. But, possibly more important, she was white and not the only woman on Texas' death row. Another woman, Erica Sheppard, a black, who had forfeited her appeals was scheduled to die after Tucker. Could Bush grant clemency for a white woman and kill a black woman? Another big no. Sheppard subsequently changed her mind and is appealing her sentence.

At least in Tucker's case, her guilt was certain. Other cases are less clear, or they involve extenuating circumstances, such as insanity or mental retardation, that cloud adjudication. While still governor of Arkansas, then-presidential candidate Bill Clinton famously took time away from the campaign trail in 1992 to oversee the execution of Ricky Ray Rector, a man so mentally disabled that he saved dessert from his last meal for "later."

Such obvious distortions of justice, combined with recent DNA advances that have resulted in the exoneration of numerous inmates scheduled for execution, make imperative a reappraisal of our attitudes toward and application of capital punishment. Given the politicization of death-penalty cases, a moratorium on executions in the meantime seems the least we should do.

Kathleen Parker writes for Tribune Media Services, Chicago, Ill.

NCADP National Execution Alert

Richard Johnson, a white male, is scheduled to be executed May 3 for the shooting death of State Trooper Bruce Small. This is a case in which Johnson’s guilt is in serious doubt.

“It disturbs me greatly that Johnson stands convicted of murder, and is sentenced to die, based on the testimony of two persons, the first of whom has since recanted her testimony and the second of whom has now been identified as the murderer by the first,” stated Judge Thomas Ervin of the U.S. 4th Circuit Court in a stinging dissent against his Court’s affirmation of Richard Johnson’s death sentence.

Two people, Connie Hess and Curtis Harbert, had nothing to lose and everything to gain by implicating Johnson in the murder of Trooper Smalls. Hess and Harbert were passengers in Johnson’s RV when Trooper Smalls pulled the vehicle over. Johnson, and later Hess, testified that he was so intoxicated at the time of the altercation that he could not remember anything that transpired. Hess’ first statement, before trial, was that Harbert had murdered Smalls, but she later changed her story to implicate Johnson during trial. Only hours before Johnson’s scheduled execution in the spring of 1999 did she recant her testimony from the trial, saving Johnson’s life in the process. Hess still stands by this confession, but Johnson has yet to have his sentence overturned.

Johnson’s original trial was overturned due to prosecutor misconduct. Moreover, there is legitimate suspicion that an immunity deal was negotiated between the prosecutor and Harbert, who was never charged with any crime. This case is so overly wrought with misconduct that it makes a mockery of the legal system. Please write to the Governor of South Carolina to protest Johnson’s unfair conviction.

Augusta Chronicle

COLUMBIA - Richard Charles Johnson was put to death Friday evening for killing a state trooper in 1985, despite a confession from one of Mr. Johnson's former co-defendants. Mr. Johnson's appeal to the state Supreme Court was rejected Monday, and Gov. Jim Hodges denied a request for clemency Thursday. On Friday morning, the U.S. Supreme Court turned down three appeals from Mr. Johnson's lawyers. Mr. Johnson died by lethal injection at 6:18 p.m. Friday, a prison official said.

Mr. Johnson, 39, was sentenced to die for the shooting death of Trooper Bruce Smalls, who was killed during a traffic stop along Interstate 95 in Jasper County. A hitchhiker Mr. Johnson had picked up along the highway, Connie Sue Hess, originally testified that Mr. Johnson killed the officer. But years later, while being treated at a mental facility in Nebraska, Ms. Hess confessed to killing Trooper Smalls. A jury never heard the admission, and that was the crux of most of Mr. Johnson's appeals and the rallying cry of those who lobbied for his life to be spared.

Defense attorneys stopped Mr. Johnson's October 1999 execution a day before it was scheduled when they produced Ms. Hess' sworn statement saying she killed Trooper Smalls. The state Supreme Court assigned a judge to decide whether Ms. Hess' confession was credible. He ruled that Ms. Hess had told so many different stories about what happened that day that her testimony could not be believed. The justices ruled 3-2 in June 2000 to allow Mr. Johnson's execution to continue. "It is hard to explain how frustrating it is to be here year after year when you have no memory of what happened and not to be able to defend yourself," Mr. Johnson said in his final statement, read by his lawyer John Blume. "It is also hard to understand a system that would allow two people charged with a crime to go free and take another man's life."

CommonDreams.Org

Governor Jim Hodges of South Carolina turned "thumbs down"and allowed the State of South Carolina to kill an innocent man. In doing so he lied about crucial facts to make himself look good to the public as a tough-on-crime candidate for reelection in November. Hodges denied Richard Charles "Ricky" Johnson's application for clemency and he was killed by the State of South Carolina on Friday, May 3, 2002. Despite requests to grant clemency from retired S.C. Supreme Court Chief Justice Ernest Finney, 13 past presidents of the S.C. State Bar, 25 former state and federal prosecutors, many state legislators and civil rights leaders, and an estimated 7,000 concerned citizens, Hodges rejected Johnson's clemency appeal.

Former Solicitor Capers Barr of Charleston, who successfully prosecuted several death penalty cases in his career, said he believes a jury should have been given the chance to consider the 1999 confession of Connie Sue Hess to being the killer herself rather than Johnson. Her testimony and that of Curtis Harbert, her compatriot at the crime scene in 1985, were used to convict Johnson in the trials he had in 1986 and 1988. Barr said the case "scares him."

To "cover" his disgraceful decision to execute an innocent person, Mr. Hodges issued an inaccurate and misleading statement that was laden with lies and misrepresentations. John Blume, the leader of Johnson's clemency application team, is a nationally renowned capital defense attorney and Professor at Cornell University Law School. Mr. Blume said he had "grave doubts about the integrity of a man who relies on demonstrably false information, and ignores other information, to justify taking a potentially innocent man's life."

Among the many false and misleading assertions in Governor Hodges' statement and attachments that denied clemency was that Johnson had the gun used to kill Trooper Smalls in his possession when he was apprehended in a drunken stupor just after the shooting. That is absolutely untrue! This outright lie about critical physical evidence in the case was included in a letter attached to the denial of clemency from Randolph Murdaugh, III, the Solicitor of the 14th Judicial Circuit, who prosecuted the case in the 1986 and 1988 jury trials.

Murdaugh also included a quote from a statement made by Mr. Johnson to the jury in the sentencing phase of the trial after he had been convicted on the testimony of Hess and Harbert. Mr. Johnson's court appointed, local lawyer probably advised Mr. Johnson to apologize to the jury for anything he had done to have a chance to avoid the death penalty. Since Mr. Johnson had no memory of what happened due to memory blackouts from his alcoholism and drug abuse, he told the jury he was sorry for anything he had done. This was highlighted by Hodges as an admission of guilt in denying clemency for Mr. Johnson. Murdaugh and his dad, "Buster," have held the powerful Solicitor's job for several decades in that judicial district. The Murdaugh's and their law firm are known across South Carolina to wield unparalleled power over the judicial system and politics in that area of the state.

Another astounding lie and misrepresentation in Governor Hodges' denial of clemency was that he (Hodges) was not aware of any member of "the Smalls family that has expressed support for clemency." The clemency application itself contains an affidavit from Trooper Small's mother, Mrs. Thelma Blue, that she was not in favor of Ricky Johnson receiving the death penalty and that it would "dishonor her son's memory" if Ricky Johnson's death sentence was carried out. State Senator Clementa Pinckney also informed Mr. Hodges that he had talked to the family and the family was not in favor of Ricky Johnson's execution. Governor Hodges' conduct in misleading and lying to the people is disgraceful.

Mr. Hodges was a lawyer for the wealthy before becoming Governor and has raised over five million dollars for his reelection, mainly from corporate and wealthy elites. About 15 minutes after her son, Ricky was killed by the State of South Carolina last Friday evening I talked Mrs. Nelda Johnson. Mrs. Johnson came down with her family from Morehead City, North Carolina to say goodbye to Ricky. Through her tears, she told me she was a poor, working class person who knew that if she had had the money to hire a good lawyer to get her son a fair trial back in the 80's, Ricky would be alive and free. Mrs. Johnson then said that she was glad that Ricky never found out about her losing her job six weeks ago as a home health-care giver due to cutbacks in Medicaid.

Along with more than a hundred people gathered to protest the Governor's deplorable denial of clemency, I was standing in front of the Governor's Mansion complex grieving with Mrs. Johnson, Ricky's sister, Lori Crawford and his brothers, Craig and John. As tears streamed down our faces, they all agreed, more than anything else, that they - and Ricky - wanted the world to know that he was innocent. As we cried together at the injustice of the death of their beloved son and brother, we looked beyond the high fences and security guards at the group of elegant mansions. John, who had just held the hand and looked into the eyes of his dying brother asked, "Is this the Governor's Mansion?" I replied that yes, this is where Ricky might have become a waiter for the rich and well connected, if his death sentence had been commuted to life in prison. Mrs. Johnson said, "poor people don't have a chance for justice. All I ever wanted was a fair trial for Ricky."

Tom Turnipseed is an attorney, writer and so-called civil rights activist in Columbia, South Carolina.

State v. Johnson, 360 S.E.2d 317 (S.C. 1987) (Direct Appeal).

Richard Charles Johnson, the appellant, was indicted for the murder of Bruce K. Smalls (Trooper Smalls), a South Carolina State Trooper. A jury convicted appellant of murder, and he was sentenced to death. We reverse and remand this case for a new trial.

In September, 1985, Dan Swanson (Swanson) was traveling through North Carolina in his recreational vehicle on his way to Florida when he picked up appellant, who was hitchhiking. The following day Swanson and appellant picked up hitchhikers Curtis Harbert (Harbert) and Connie Hess (Hess), alias Julie Smith, on Interstate 95. This group made stops in Florence County and Clarendon County, South Carolina, where Swanson parked along the interstate to rest. As Swanson slept, the appellant fatally shot him with a .357 caliber gun. Appellant and Harbert wrapped Swanson's body in blankets and sheets, tied it with wire and concealed the corpse in the vehicle underneath a mattress.

The appellant, Harbert and Hess continued their journey in Swanson's vehicle with appellant driving. Appellant had been drinking liquor and began driving erratically. Several motorists noticed his reckless operation of the vehicle, including a truck driver who notified Trooper Smalls. The officer stopped the vehicle and during the questioning, appellant shot Trooper Smalls six times, killing him.

Appellant alleges he was denied due process of law when the solicitor argued to the jury during the guilt phase of the trial that appellant had shown no remorse for his actions.

Defendant was convicted of murder by the General Sessions Court, Jasper County, William T. Howell, J., by jury verdict. Defendant appealed. The Supreme Court, Finney, J., held that: (1) solicitor's improper reference to defendant's lack of remorse was error; (2) admission of extensive evidence in detail of defendant's prior criminal conduct constituted reversible error; (3) the trial court's failure to comply with requirements for clarifying jury's concern about parole during sentencing phase was error; and (4) defendant was denied fair trial. Reversed and remanded for new trial.

State v. Johnson, 410 S.E.2d 547 (S.C. 1991) (Direct Appeal II).

Richard Charles Johnson was charged with the murder of a state highway trooper. Johnson was convicted and sentenced to death in February 1986. His conviction was reversed on appeal. State v. Johnson, 293 S.C. 321, 360 S.E.2d 317 (1987). Johnson was retried in March 1988. The jury found him guilty of murder and sentenced him to death. This appeal followed. We affirm his conviction and sentence.

In September 1985, Dan Swanson (Swanson) was driving through North Carolina in his recreational vehicle (RV) on his way to Florida when he picked up Johnson, who was hitchhiking. The following day, Swanson and Johnson picked up hitchhikers Curtis Harbert (Harbert) and Connie Hess (Hess), alias Julie Smith, on Interstate 95. Johnson fatally shot Swanson, wrapped his body in a sheet, tied it with a stereo wire and concealed it under a mattress.

Johnson, Harbert and Hess continued their journey in Swanson's RV with Johnson driving. Johnson had been drinking liquor and began driving erratically. Several motorists noticed his reckless operation of the RV, including a truck driver who notified Trooper Smalls. The officer stopped the RV and during questioning, Johnson shot Smalls six times, killing him. This case involves the murder of Trooper Smalls only.

South Carolina Equal Justice Alliance

May 2, 2002 - MEDIA RELEASE - RICHARD CHARLES JOHNSON DENIED CLEMENCY

Statement of John Blume on behalf of Mr. Johnson's defense team:

Tomorrow at 6:00 p.m., South Carolina will execute an innocent man. That is the ultimate miscarriage of justice and it will prove to be a truly dark day in this state's history. Reasonable people might differ on how much doubt exists in this case. But no one can deny that there is some doubt, and even when Ricky Johnson is dead, the people of South Carolina will never know for sure whether we have executed a guilty man or an innocent one. The Governor's decision to allow this is a disgrace.

Governor Hodges has declined to commute Ricky's sentence despite the fact that someone else has confessed to being the real killer. This confession has never been retracted. No other state has carried out a death sentence when there were such grave questions about whether the right person was convicted of murder and sentenced to death. Governors in twelve other states have had the moral courage to intervene under similar circumstances. Unfortunately, Governor Hodges did not. Due to the overwhelming support for commutation by retired judges, former prosecutors, bar presidents, members of the General Assembly, religious leaders, and thousands of ordinary citizens, we can only believe that clemency was denied out of fear that the Governor's political opponents might use the commutation against him. Ricky Johnson is to be sacrificed at the altar of election-year politics. The Governor says he is convinced Johnson is guilty as charged. Based on what? There is not a shred of physical evidence indicating Ricky Johnson killed Trooper Smalls, the case is built solely on two co-defendants and one jail-house snitch. Even the three-member majority of the South Carolina Supreme Court acknowledged the possibility that Ricky did not kill Trooper Smalls. Two members of the Supreme Court issued strong dissents. What does the Governor know that these justices do not?

Ricky will be the 26th person executed since South Carolina restored the death penalty in 1977. Governor Hodges will, as of tomorrow night, have presided over five of those executions. No death-sentenced inmate has been granted clemency in South Carolina. If this case- which involved a confession by another person and a 3-2 decision by the South Carolina Supreme Court on the fundamental question of innocence -did not warrant clemency due to doubts about whether the right person was convicted, then there is no point in other death row inmates even asking the Governor to consider commutation. No other state has executed so many people without a single grant of clemency.

The Governor's statement, and the attachments to it which he apparently relied upon in denying clemency, contain other allegedly factual assertions which are inaccurate, misleading or false. The most stark, but not the only, example is the statement that Johnson had in his possession the gun used to kill Trooper Smalls. That is just not true. We have grave doubts about the integrity of a man who will rely on demonstrably false information, and ignore other information, to justify taking a potentially innocent man's life. Ricky has asked us to express his deep thanks to the individuals and organizations that wrote, called, faxed and e-mailed Governor Hodges asking the Governor to commute his sentence. We also would like to thank all of those who supported our efforts.

SCEJA MEDIA RELEASE

GOVERNOR HODGES DENIES CLEMENCY TO INNOCENT MAN SCHEDULED FOR EXECUTION FRIDAY MAY 3

Governor Hodges has refused to stop the execution of an innocent man. Despite the fact that another person has confessed to being the person that murdered South Carolina Highway Patrolman Bruce Smalls, the State of South Carolina will execute Ricky Johnson tomorrow night. The failure of the system, from the time Ricky was arrested to the eve of his execution, powerfully demonstrates the need for a critical examination of the death penalty and its application in South Carolina. The Governor is supposed to be last safety valve in the system, and one of the primary reasons the clemency power exists is to prevent the execution of a potentially innocent person. Ricky Johnson’s execution demonstrates the ineptitude of the capital appeals process and the impotence of clemency in South Carolina. This case, in short, reveals, tragically, the immediate need for a moratorium similar to the one imposed by Republican Governor Ryan in Illinois.

Since reinstatement of the death penalty in the late 1970’s, over 100 people in 24 states have been exonerated and released from death row. Three of the hundred were from South Carolina. A fourth individual was released three years ago from South Carolina’s death row and is awaiting a new trial. Ricky Johnson should have been the fifth; instead he will be executed. Aside from questions about the possibility of innocent individuals being sentenced to death, there is also substantial evidence that who is sentenced to death in this state is influenced by race; both the race of the defendant and the race of the victim. In addition to a moratorium, A bi-partisan commission, similar to the one convened by Governor Ryan, should also be established and ordered to examine the administration of (and the continued need for) the death penalty in South Carolina, and suggest improvements to the system which will reduce the risk of convicting the innocent and the risk of racial discrimination playing a role in who lives and who dies.

Richard "Ricky" Charles Johnson (1962 - 2002): Murdered by the State of South Carolina.

VIGIL HELD AT GOVERNOR'S MANSION WELL ATTENDED (May 3, 2002)

Attorneys, organizers and community leaders who asked Governor Hodges to grant Ricky clemency held a 2 hour vigil outside of the Governor’s mansion. 120 people, press and Ricky's family were in attendance. The vigil was held outside of Governor Hodges residence instead of the prison where Ricky was to be executed to send a message to the Governor that his constituents are outraged by his refusal to stop the execution of an innocent man. Ricky Johnson was pronounced dead from lethal injection at the Broad River Road Correctional facility in Columbia at 6:18 p.m. Ricky's family members were deeply saddened. They were not permitted to meet with Ricky today, but were allowed one last phone call this afternoon. His mother, two brothers, a sister and brother-in-law came to Columbia to support Ricky on this horrific day. They wished to thank everyone who worked so hard to save Ricky from this needless, tragic end. They ask that you continue the struggle and never let South Carolina or Governor Hodges forget Ricky Johnson. The Governor is supposed to be last safety valve in the system, and one of the primary reasons the clemency power exists is to prevent the execution of a potentially innocent person. Ricky Johnson’s execution demonstrates the ineptitude of the capital appeals process and the impotence of clemency in South Carolina.

South Carolina Equal Justice Alliance

This Application for Clemency, Ricky Johnson's last hope for justice, was delivered to Governor Hodges on Tuesday, April 23, 2002. We urge you to join us asking Governor Hodges to have the courage to do what reason would dictate and what justice would demand.

Application for Executive Clemency Submitted on Behalf of Richard Charles Johnson to The Honorable Jim Hodges Governor of the State of South Carolina Columbia, South Carolina Pursuant to S.C. Const. § 14

For the reasons set forth in this application and the accompanying appendices and materials, Richard Johnson seeks executive clemency. He does so because he did not commit the crime for which he was convicted and sentenced to death. He is innocent.

The story begins in September 1985, when Richard Johnson and Daniel Swanson, an eccentric businessman with a lengthy history of mental illness and psychiatric treatment, left Morehead City, North Carolina in Swanson’s RV. The two had planned on driving to Florida, but they never made it that far. The two men stopped at a rest area located near the border between North and South Carolina. While there, Swanson picked up two destitute hitchhikers: Connie Sue Hess and Curtis Harbert. The group continued on its way, with Johnson driving the RV. According to Hess, she and Harbert had sex with Swanson in the back of the RV, after which she joined Johnson in the driving compartment. As the group drove through Clarendon County, South Carolina, someone shot and killed Swanson.

The remaining three — Johnson, Hess, and Harbert — con­tinued south on I-95, eventually entering Jasper County. Johnson’s driving was dangerous and erratic. He’d been drinking heavily and using drugs all day and was by now so intoxicated that he could later remember nothing of the day’s events. He was swerving and hitting guardrails. Trooper Bruce Smalls spotted the vehicle, and pulled it over. As he stood on the steps to the RV, he too was shot and killed. The question, of course, was who did it?

Johnson, Hess, and Harbert ran from the scene. Hess and Harbert headed in one direction. Johnson in the opposite one. All three were eventually caught. All three were threatened with prosecution for the crime of capital murder in connection with the deaths of Swanson and Trooper Smalls. But in the end, only Johnson was tried and convicted.

In fact, Richard Johnson was twice tried and twice convicted for the murder of Trooper Smalls, once in 1986 and again in 1988. On neither occasion, however, did the jury hear the full story. Most importantly, on neither occasion did the jury learn the truth: Harbert had killed Swanson; and Hess — by her own confession — had shot and killed Trooper Smalls. The jury convicted and condemned an innocent man.

I - Following the killings, Hess and Harbert each gave state­ments to law enforcement officials. Harbert said that Johnson had killed both Swanson and Trooper Smalls, and that’s what he subsequently told the jury at trial. In one statement, Hess, too, said that Johnson had killed Trooper Smalls. But in a later statement, Hess said that Harbert — not Johnson — was the one who killed Trooper Smalls. At trial, however, Hess decided to go with her first story. Johnson, she testified, had killed Trooper Smalls and Swanson.

The testimony of Hess and Harbert was key to the state’s case against Johnson. They were the only ones who knew what happened in that RV. Johnson was so drunk and stoned he could remember absolutely nothing. Moreover, the physical evidence the state was able to find linking Johnson to the crime was all but non-existent. Indeed, what little evidence there was suggested Johnson could not have been the killer. No gunpowder residue was, for example, found on his hands. None was found on the hands of either Harbert or Hess, either. Johnson, however, was tested within the critical time frame during which powder — if any was present — would have shown up; in contrast, Harbert and Hess were tested, for reasons that remain unclear, several hours outside the critical window of opportunity, so of course no residue was found. Left only with the testimony of two witnesses who could very well have been the perpetrators themselves, and with no real physical evidence, the state turned to an informant — Ronnie Dale Steven­son — for a helping hand.

Johnson was held in Cell Block 2 pending his trial for the murder of Trooper Smalls. Stevenson, it just so happened, was being held there too, or so the state claimed. It was, in any event, during this time that Stevenson said he spoke with Johnson about Trooper Smalls’s killing. Stevenson later said at trial that he asked Johnson if he’d shot Trooper Smalls, and according to Stevenson, Johnson said in reply, “I don’t remem­ber shooting him, but I know I did it.” A couple of days later, Stevenson said that he “talked to [Johnson] again and . . . asked him why did he shoot him and he [Johnson] said, because there was a dead man in the back of the RV . . . .”

That, more or less, was the evidence presented at Johnson’s trial: The testimony of two eyewitnesses, one or both of whom could themselves have been the real killer or killers, and the hearsay testimony of an inmate to whom Johnson had allegedly confessed. That’s a pretty thin case, but the jury nonetheless convicted and sentenced Johnson to death. Johnson appealed to the South Carolina Supreme Court, which reversed his conviction and ordered a new trial. The second trial proceeded along much the same lines as the first. Harbert was once again the state’s star witness, and once against testified that Johnson had killed Trooper Smalls. Stevenson also testified, saying once again that Johnson had confessed to him that he (Johnson) had killed Trooper Smalls.

Hess, however, did not testify at the second trial She was, according to the prosecutor, unavailable; she was in Nebraska, in some kind of institution. Rather than force her to return to South Carolina to testify, the prosecutor suggested simply reading to the jury her testimony from the first trial. The defense saw no reason to object. Once again, the jury convicted Johnson and sentenced him to death. This time, the South Carolina Supreme Court did not reverse.

Following his conviction and sentence of death in connection with the death of Trooper Smalls, Johnson agreed to plead guilty to the murder of Swanson, in exchange for which the state agreed not to seek the death penalty. Why, one might ask, would an innocent man plead guilty to a crime he did not commit? The better question, however, is why wouldn’t he? Johnson already knew how at least one jury sized up the evidence against him. He already faced one death sentence, and didn’t see any point in facing another. He couldn’t remember anything that happened on that day in order to defend himself. And besides, his lawyer was telling him to take the deal. What would have been the point of insisting on a trial? Faced with the likelihood of yet another death sentence, a plea to life imprisonment looked like a good deal.

III - If Johnson was the real triggerman, if Johnson was the one who killed Trooper Smalls, then the fact that the jury sentenced him to death for that crime comes as no surprise. In the jury’s mind, after all, Johnson was a cop-killer. But the jury did not hear the real story. It did not have all the facts before it. And if it did had all the facts, it’s hard to believe the result would have been a conviction, much less a sentence of death. So, what evidence didn’t the jury hear, and almost as important, why didn’t it hear it?

To begin with, keep in mind that the state had no physical evidence whatsoever linking Johnson to the crime. Keep in mind as well that Johnson himself was so intoxicated he couldn’t remember anything and was thus in no position to defend himself. Con­sequently, the case against Johnson turned almost wholly on the testimony of Harbert, Hess, and Stevenson. Start with Harbert, who appeared at both trials, and who testified on each occasion that Johnson was the one who killed Trooper Smalls. The jury could obviously have surmised that Harbert had some incentive to lie, since he himself might have been the actual killer. Indeed, at the time of the killings, Harbert was wanted by authorities in West Virginia. (Johnson, on the other hand, had no criminal record).

What the jury did not know was how much of an incentive Harbert had to lie. Remember that at the time he agreed to testify for the state, Harbert, along with Johnson and Hess, was facing charges of capital murder. In exchange for his testimony against Johnson, however, the state agreed not to prosecute him. And indeed, three days after Johnson was convicted, all charges against Harbert were dropped.

But the fact that Harbert’s testimony was given in exchange for a get-out-of-jail-free card was never brought to the jury’s attention. The jury thought Harbert had no more incentive to lie than would anyone else who happened to be at the scene of a crime. But that wasn’t true. Harbert’s incentive to lie was bigger than that. He lied in exchange for the state’s promise to let him go if he did, even if he was the actual killer.

So why didn’t the jury know that Harbert was testifying against Johnson in exchange for his own life? Because no one ever told Johnson or his attorneys that that’s what was going on. Yet they should have. Prosecutors in the state of South Carolina, like pro­secutors everywhere, have a constitutional obligation to give a criminal defendant any information that might help exculpate him, which the evidence of Harbert’s bargain with the state surely would have done in Johnson’s case. But the state failed to honor its obligation, and in so doing violated Johnson’s right to the due processes of law.

Turn next to Stevenson, to whom Johnson allegedly con­fessed while the two were being held together in jail. The jury knew, of course, that Stevenson was a jailhouse inmate, and could have concluded all on its own that his credibility left something to be desired. But what the jury did not know was that Stevenson made a livelihood out of testifying against other prison inmates, and testifying against them falsely. Indeed, he’d been in the business since at least the early 1980’s. Stevenson told the jury, however, that he’d only once before provided information helpful to law enforcement official — yet another lie. Nor did the jury know that law enforcement officials, fully aware of the fact that Stevenson was a professional snitch, purposely arranged to have Stevenson housed in the same facility as Johnson.

So why weren’t these exculpatory facts — facts which would have gone far to put the jury in reasonable doubt as to Johnson’s guilt — brought to the jury’s attention? Once again, the state had a constitutional obligation to inform Johnson and his lawyers about Stevenson’s history as an informant, and once again, the state failed to honor that obligation.

Turn finally to Hess, who also testified against Johnson at the first trial, and whose testimony at that trial was introduced against him at the second trial. Hess, like Harbert and Johnson, was initially charged with capital murder, and like Harbert, she was offered immunity in exchange for her testimony against Johnson. Also like Harbert, the charges against her were dropped three days after Johnson was convicted. And, like Harbert, the deal she’d struck with the state — her testimony against Johnson in exchange for her life — was never revealed to the defense, nor, therefore, to the jury. Once again, the state failed to honor its constitutional obligations.

In short, the state withheld a host of evidence that could and would have helped Johnson prove his innocence. But it gets worse. Hess had never been completely comfortable about placing the blame for Trooper Smalls’ death on Johnson. True, she said in her initial statements to the police that Johnson did it, but she later told the police that Harbert — not Johnson — was the killer. Nonetheless, when it came time to testify, Hess stuck to her side of the bargain she’d struck with the state. Johnson, she said, was the killer.

Yet Hess’s discomfort would not go away. In fact, it got so bad that Hess finally had to do something about it. Following Johnson’s first trial, but before his second one, Hess contacted Marion Riggs, the lawyer who had been assigned to represent her on the charges originally filed against her in connection with the killings. Hess told Riggs that she wanted to “correct the mistakes.” She wanted to recant her testimony against Johnson. The real killer, Hess told Riggs, was Harbert. Harbert had killed both Swanson and Trooper Smalls. Johnson was inn­ocent. Hess told Riggs to forward her recantation to the sheriff, which Riggs did. He mailed a letter to the sheriff telling him that Hess had recanted her testimony against Johnson. The sheriff later testified that, to the best of his recollection, he’d passed the letter on “to proper channels,” meaning he’d passed the letter along to the chief SLED (South Carolina Law Enforcement Division) agent involved in the case, a fellow named Sonny Riley, “or to whoever was in charge of the case or the Solicitor.” In other words, the state knew, at the time of the second trial, that Hess had recanted her prior testimony accusing Johnson of the murder. The prosecutor should of course have turned that inform­ation immediately over to Johnson’s defense lawyers, as he was con­stitutionally required to do. But he didn’t. Even worse, the prosecutor was the one who suggest­ed, rather than bring Hess back from Nebraska to testify in person at Johnson’s second trial, that they simply use instead the testimony she gave at the first trial. The defense agreed, but then again, the defense didn’t know that Hess had recanted her original testimony. The state did, but decided to keep that information to itself, all at the price of Johnson’s right to a fair trial.

Would any of this information — the immunity Harbert and Hess had gotten in exchange for their testimony, the fact that Stevenson had made a career out of lying against other inmates, and last but not least, the fact that Hess was now saying that Johnson was innocent and that Harbert was the real killer — have made a difference to the jury? Of course it would have. The state’s case against Johnson was thin to begin with. No jury would have con­victed him if it had heard all the evidence. And there is no chance he would have been sentenced to death. Johnson’s lawyer at the second trial learned of Hess’s recant­ation during proceedings that occurred some time after the trial was over. His reaction to learning of her recantation sums it up: “I think an innocent man is up there in prison.”

Indeed, Johnson’s trial had all the earmarks of a trial in which the risk of an innocent person being convicted is at its very highest. The experts who study such risks, most notably Professor Barry Scheck of the Cardozo Law School’s Innocence Project, and Professor Lawrence Marshall of the Northwestern University Law School’s Center on Wrongful Convictions, have found that trials involving defendants who are convicted of a crime, but who are later exonerated through the use of DNA, share certain common features. In particular, they usually involve the following four elements:

· The presentation of testimony from unreliable jail-house informants. Here, Stevenson filled that role admirably.

· The use of so-called “junk science.” Here, a police dog handler testified that his bloodhound had corroborated Harbert’s testimony about the direction in which he ran following Trooper Smalls’s shooting, thus enhancing Harbert’s credibility in the eyes of the jury. Such “bloodhound testimony” is among the most notorious of junk science.

· The resort to misconduct on the part of prosecutors. Here, the most egregious — though by no means the only — example of prosecutorial misconduct was the failure to disclose to Johnson and his attorneys the critical evidence that would have lead to his acquittal; and

· The failure of defense counsel to present an adequate defense.

Here, Johnson’s defense lawyers — although hampered from the start by the state’s failure to turn over critical exculpatory evidence — nonetheless fell short in a number of ways. In particular, they failed, despite the widespread publicity surrounding the killing of a state trooper, to request a change of venue. They failed to present all the exculpatory evidence they did have. Finally, even though (because of the state’s misconduct) they didn’t know about Steven­son’s career as an informant, they nonetheless failed to impeach Stevenson based on the full range of his criminal convictions, of which there were many and of which they were fully aware, choosing instead to highlight only one.

IV - When the state violates a criminal defendant’s constitutional right to a fair trial, as the state did here, the usual avenue of redress is through the courts. Accordingly, Johnson tried to avail himself of that avenue. But that avenue was never really open to him. The critical evidence that should have been presented to the jury was withheld from Johnson and his lawyers by the state in violation of its constitutional duty to disclose that evidence. Nonetheless, the lawyers who represented Johnson on appeal discovered that evidence and presented it to the courts, both state and federal, confident that the courts would agree that the state had violated Johnson’s right to due process and would order a new trial. Johnson’s eventual vindication was just a matter of time.

But none of that happened. Instead, Johnson finds himself pleading for executive clemency. What went wrong? To understand, you need to go back to Johnson’s trial. Follow­ing his conviction, Johnson made the following statement to the jury during the part of the trial in which the jury was ask to decide his fate, life imprisonment or death:

I haven’t been before you during the guilt phase of this trial or until now because there was no defense for my actions, I realize that now . . . . I have no defense for anything or the tragedies that have occurred. All I have is sorrow [for] the lives that I have ruined. I realize that there were many that I have ruined. This statement can be understood in one of two very different ways. The first is that it’s an admission of guilt. Having already been convicted, Johnson decided at long last to come clean. The second is that it’s the statement of a man who can’t remember a single thing about the day on which, according to a jury of his peers, he killed a state trooper, but who’s sorry if that’s in fact what he did.

The first way of interpreting Johnson’s statement is simply wrong. His statement can’t be read as an admission of guilt, because Johnson didn’t and can’t remember doing anything for which he would have acquired guilt. Instead, the second interpretation is the right one. Johnson’s statement was an entirely appropriate, and in fact, courag­eous, acknowledgment of the jury’s verdict, but nothing more.

Nonetheless, the state court that heard Johnson’s initial post-conviction appeal — which was Johnson’s first appeal following his discovery of the critical evidence discussed above — interpreted his statement as an admission of guilt. Moreover, that court further found that any criminal defendant who admits his guilt cannot, under South Carolina law, raise any legal challenge to the validity of the process that led to his conviction. Consequently, the court refused, on the basis of this rule, to hear anything about the state’s failure to turn over the evidence that would have led to Johnson’s acquittal. In short, the state court turned a deaf ear to Johnson’s appeal, just because he said — assuming the jury’s verdict against him was true — that he was sorry for what they said he’d done.

Johnson could hardly believe it, nor could the lawyers representing him on appeal. They’d never heard of such a rule, and for good reason: It doesn’t exist. The lower court made it up. The courts of the state of South Carolina are of course free to establish the procedural ground rules that tell criminal defendants what they must and must not do if they want the courts to listen to their appeals. Yet those rules cannot be created out of thin air. They must be clear and well-established in advance, so that a criminal defendant can at least know what he must and must not do if he wants the courts to listen. In fact, if a state court refuses to hear a defendant’s appeal on the basis of a rule that is not well-established and regularly followed, he can ask a federal court to step and give him the redress he seeks.

Before doing that, however, Johnson asked the South Carolina Supreme Court — the final arbiter on what South Caro­lina law does and not say — to review the decision of the lower state court, and to say, definitively, whether or not South Carolina law does indeed recognize the rule on the basis of which the lower court refused listen to Johnson’s appeal. Without explaining why, however, the South Carolina Supreme Court refused. It simply declined to accept his appeal for review.

With no hope of relief in the state courts, Johnson turned to the federal courts, asking them to listen. He asked them to ignore the rule on which the state courts had refused to hear his appeal. Despite what the lower state court had said, that rule, Johnson told the federal courts, was not and never had been the law in South Carolina. But the federal courts (though not without dissent) read South Carolina law in the same way the lower state court had read it: A defendant who admits his guilt forfeits his right to appeal on the basis of any claim — however meritorious — that casts doubt on the validity of the jury’s verdict. Consequently, the federal courts, like the state courts, refused to hear Johnson’s appeal.

Now running out of options, and still convinced that his reading of South Carolina law was the right one, Johnson decided once again to ask the South Carolina Supreme to decide, once and for all, whose reading of South Carolina law was correct: Did the rule that had so far prevented him from having his day in court really exist?

This time the South Carolina High Court agreed to give Johnson an answer, and it agreed with him. The lower state court and the federal courts had been wrong. The rule that had locked the door to his appeal and to a new and fair trial had never been the law of South Carolina. But Johnson’s victory had come too late. The South Carolina Supreme Court had answered Johnson’s question about the existence of the rule that had been thwarting him throughout his appeals, but it refused to hear the merits of his appeal itself. It declined to listen to his claim that the state had unconstitutionally withheld evidence of his innocence. And there was no way to get the federal courts to listen again, either. Their doors were now shut and could not be reopened. The end result can only be characterized as a miscarriage of justice, if not Kafkaesque. State officials intentionally withheld critical evidence that would have led to an innocent man’s acquittal. The innocent man duly asked the courts for help, but the courts up and down the legal hierarchy refused to listen based on a rule that never existed. When the non-existence of that rule was finally established, it was too late. But it gets worse still.

V - Time was now running out. Trooper Smalls was shot and killed in September 1985. Fourteen years had passed, and Johnson was still trying to get someone to listen to the evidence the state had wrongfully withheld from him and the jury some eleven years before. In the hope of discovering still more information that might prompt the courts at last to listen to his pleas, one of Johnson’s appellate attorneys, Diana Holt, set off for Nebraska in search of Connie Sue Hess. Holt found her living at the Liberty Center in Norfolk, Nebraska. What Holt learned was breathtaking. After receiving the advice of counsel, Hess swore an oath and signed an affidavit confessing that she was in fact the one who shot Trooper Smalls.

According to her statement, she and Harbert had been “impressed” by Swanson’s apparent wealth, which was on open display in the RV, and thought they’d take some of it for themselves. After she and Harbert had sex with Swanson in the back of the RV, Hess moved to the front to talk with Johnson, who was driving. That’s when she heard the shot. Harbert, who was still in the back of the RV with Swanson, had shot and killed him. Harbert, not Johnson, had killed Swanson.

When Trooper Smalls pulled the RV over, according to Hess, this is what really happened: [Trooper Smalls] knocked on the door. Richard [Johnson] opened the door and asked the officer if he wanted to come inside the RV. I had become upset because I was afraid for Curtis [Harbert]. When the officer started up the RV, I shot him. The officer grabbed for his holster, but I shot him twice more. The officer was propped up against the door of the RV still on the steps of the RV. I am pretty sure he was dead. I kicked the officer out of the RV. I shot him as he lay on the side of the road. I screamed at him, “there you go, bastard.” Curtis and I ran down the interstate. We had the gun with us. I threw the gun away. All of this is consistent with, and corroborated by, the physical evidence found at the scene of the crime. Hess knew what she was talking about.

The Liberty Center, where Hess was living at the time she confessed, is a facility that provides services to those suffering from some form of mental illness. And there’s no doubt that Hess has problems, but she was nonetheless fully competent at the time she confessed. No one disagrees with that. Indeed, before signing, Hess conferred with Jeffrey Hrouda, an attorney on the board of directors of the Liberty Center, who fully apprised her of her right to remain silent and of the ramifications of confessing to Trooper Smalls’s murder. Indeed, Hrouda advised Hess not to sign, but she did so anyway. Two lawyers from the public defender’s office were also present, and both prepared affidavits describing the circumstances under which Hess confessed. Both of their descriptions show that Hess was fully aware of what she was doing. So why now? Why, after all these years, did Hess finally come forward, and why did she not come forward earlier?

Hess had of course always been ill at ease for placing the blame on an innocent man. She had lied in her original statement to the police because “[t]he solicitor told me I would fry if I had anything to do with it.” But now, with Johnson’s execution imminent, she could no longer bear the burden. So she told the truth, despite what it may cost her herself. I “cannot,” she wrote, “let Richard Johnson die for something he did not do or have anything to do with at all.”

VI - With Hess’s confession in hand, Johnson turned once again, and with confidence, to the South Carolina Supreme Court. Johnson asked the Court, on the basis of Hess’s confession, to order a new trial. Surely the Court would not let Johnson’s execution go forward under the circumstances. The Court took the case and assigned a special referee to assess whether Hess was competent to confess, and if so, whether she was credible.

The special referee found that Hess was indeed competent, but she was not, the special referee concluded, credible. Johnson filed papers with the Court explaining why, in his judgment, the special referee’s assessment was wrong, and why Hess should be taken at her word. In the end, three members of the Court — a bare majority — sided with the special referee, and refused to give Johnson what he’d been asking for now for over twelve years : A fair trial, and the chance to present all the facts of his case to a jury.

Two of the Court’s members disagreed with the three-member majority. “Given the lack of physical evidence to indicate [Johnson], and not Harbert or Hess, fired the shots which killed Trooper Smalls, it is my opinion,” wrote Justice Pleicones, “that Hess’s confession would probably change the result if a new trial were granted.” And, in Justice Waller’s judgment, “[c]onsidering the unusual circumstances of this case, I believe that to deny Johnson a new trial in the face of a confession by someone who was admittedly present when the murder was committed would constitute a denial of fundamental fairness shocking to the universal sense of justice.”

VII - So Richard Johnson now comes to you seeking clemency. He comes to you with an impeccable South Carolina Department of Corrections record that is devoid of even one disciplinary incident in his sixteen years on death row. Not only does he pose no harm to those outside of prison, but he clearly poses no harm within those walls either.

The governors of South Carolina, past and present, have been asked to consider many requests from condemned men for mercy. Some of the applicants have sought mercy because they were mentally disturbed at the time they committed the crime for which they were sentenced to death, or because they were mentally retarded. Others have pointed to unspeakable experiences in their childhood that helped make them into the kind of men who are capable of killing, or to experiences later in life, such the years they served in the military in Vietnam. And so on. But never in the years since South Carolina reinstated the death penalty in the mid-1970’s has a condemned man asked for mercy because he is innocent, and where he has in hand to support his claim the un-retracted signed confession of someone else admitting to the murder for which he is scheduled to die. Justice will not be served by the execution of Richard Charles Johnson.

Even Trooper Smalls’ own mother acknowledges this sad truth. As she states in her attached affidavit, “Killing Mr. Johnson . . . will not,” she’s said, “bring my son back and serves no purpose.” Other governors, confronted with cases where there were lingering questions about the defendant’s guilt, have commuted the death sentence. In fact, since 1979, the governors of Florida, Indiana, Louisiana, Maryland, North Carolina, Texas, and Virginia, have granted clemency a total of twelve times to individuals sentenced to death on the grounds of possible innocence. See Clemency Chart. Most of these cases were not nearly as compelling as Richard Johnson’s. In fact, we are aware of no case where a death sentence has been carried out when someone else confessed to, and never retracted, being the real killer.

Indeed, mercy is not really what Johnson is seeking. In our view, only those who deserve to be punished for what they’ve done need mercy. Johnson is not guilty. He hasn’t done what the state has said he’s done. What he really seeks, therefore, is simple justice. However, even if you are not as convinced as we are that Richard Johnson did not shoot Trooper Smalls, there must be doubt. And that doubt must, in any civilized system, block Richard Johnson’s execution. Because death is the “ultimate punishment,” we must be as absolutely certain as possible that the individual put to death is actually guilty. In June of last year, Oklahoma Governor Frank Keating announced at a National Press Club meeting that proof beyond a reasonable doubt, “which is proof of such a convincing character as to be relied upon unhesitatingly in the most important of our affairs . . . is too low a standard for capital crimes” and that the standard of “moral certainty” should be the standard for capital crimes. That standard is far from met in this case.

WHEREFORE, for the reasons stated herein, Richard Johnson, by and through his undersigned counsel, respectfully requests that his sentence of death be commuted to a sentence of life imprisonment without possibility of parole pursuant to Article IV, Sec. 14 of the Constitution of South Carolina and S.C. Code Ann. Sec. 16-3-20(A).

Alternatively, counsel asks that you refer this matter to the South Carolina Board of Paroles and Pardons for a full hearing and recommendation as he is authorized to do pursuant to S.C. Code Ann. Sec. 24-21-910. Counsel also requests to be notified of any information brought to the Governor’s attention that would support a denial of clemency.