Johnson v. Kirkman
Filing
30
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS. Petitioners Motion for Limited Discovery (Dkt. 20 ) is DENIED. Petitioner's Motion for Appointment of Counsel (Dkt. 21 ) is GRANTED as set forth above. The parties' Motions for Extens ion of Time (Dkts. 13 , 17 , 22 , 27 ) are GRANTED. The parties' Motions for Leave to File Excess Pages (Dkts. 15 , 18 , 24 ) are GRANTED. Respondent's Motion for Partial Summary Judgment (Dkt. 16 ) isGRANTED as to Claims One and Si x, which are DISMISSED with prejudice. The Motion (Dkt. 16 ) is CONDITIONALLY GRANTED as to Claims Three, Four, and Five. Respondent shall file an answer to the remaining claims within 90 days after entry of this Order. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (alw)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
SARAH MARIE JOHNSON,
Petitioner,
vs.
AMANDA GENTRY,
Case No. 4:14-cv-00395-CWD
MEMORANDUM DECISION
AND ORDER ON ALL PENDING
MOTIONS
Respondent.
Petitioner Sarah Johnson (Sarah) is proceeding on her Amended Petition for Writ
of Habeas Corpus. (Dkts. 8, 8-1.) Pending before the Court is Respondent Amanda
Gentry’s Motion for Partial Summary Dismissal and Sarah’s Motion for Limited
Discovery. (Dkts. 16, 20, 19.) In addition, Attorney Dennis Benjamin and Deborah
Whipple, pro bono counsel, have appeared on behalf of Sarah to seek appointment of
counsel to aid her in discovery. Other procedural motions are also pending.
Having reviewed the record and considered the argument of the parties, the Court
enters the following Order.
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 1
SUMMARY OF DECISION
At age 16 (while still a minor child under the laws of Idaho), Sarah was convicted
of shooting her parents to death in a criminal case in Blaine County, Idaho. The state
district court sentenced Sarah to two fixed life sentences without the possibility of parole,
as well as a statutory firearm enhancement of 15 years. Sarah is now 32 years old and has
completed the firearm enhancement sentence, having served 16 years in prison in the
custody of the Idaho Department of Correction (IDOC).
In recent years, the United States Supreme Court has sent a strong message to state
and federal district courts to carefully scrutinize cases involving youthful offenders
serving harsh sentences. See Miller v. Alabama, 132 S.Ct. 2455 (2012) (mandatory life
without parole for juvenile homicide offenders violates the Eighth Amendment’s
prohibition on cruel and unusual punishments); Montgomery v. Louisiana, 136 S.Ct. 718
(2016) (Miller holding is retroactive and binding on the states). This Court has, and will
continue to, review Sarah’s case with an added measure of scrutiny in accordance with
this charge from the United States Supreme Court.
After a long and detailed review of the state court record and consideration of the
parties’ arguments, the Court is convinced that Sarah shot her parents. The Court will not
permit discovery because no “miscarriage of justice” will occur in keeping Sarah
imprisoned for her crimes because she is not actually innocent. However, because this
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 2
case warrants extra scrutiny, the Court will appoint Dennis Benjamin prospectively as
counsel for Sarah at public expense to aid in briefing of the remaining claims.
The Court will conditionally grant Respondent’s Motion for Partial Summary
Dismissal on Claims One, Three, Four, Five, and Six on procedural default grounds, and
alternatively deny Claims One and Six on their obvious lack of merit. The Court will
consider the merits of the remaining procedurally defaulted claims—Three, Four, and
Five—after briefing by the parties.
BACKGROUND
Alan Johnson (Alan) and Diane Johnson (Diane) were shot to death in their
Bellevue, Idaho home between 6:20 and 7:00 a.m. on Tuesday, September 2, 2003.
(State’s Lodgings A-16, H-8.) Sixteen-year-old Sarah and her parents were the only ones
home. (Id.) Sarah’s older brother, Matthew Johnson (Matthew), was away at college at
the University of Idaho, about a day’s journey from home, when his fiancée called him
and said his parents had been shot. (State’s Lodging A-19, pp. 4540-41.)
Alan and Diane’s bedroom door was found propped open with two pillows.
(State’s Lodging A-15, p. 2022.) They often did that during hot months because,
otherwise “the wind would create a suction in the house, or a vacuum, and slam the
doors.” (State’s Lodging A-19, p. 4547.) To help the air circulation, they would also
leave the sliding glass doors in their bedroom and downstairs off the living room open at
night. (Id., p. 4548.)
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Diane was found lying face-up in her bed with a comforter covering her body and
tucked around her head. (State’s Lodgings A-15, pp. 1794-95; A-20, pp. 5220-24.) She
had been killed instantly in her sleep by one point-blank shot to the head with a .264
caliber high-power rifle. (State’s Lodging A-16, pp. 2310-17.) With the bullet traveling
about 3600 feet per second, the single shot shattered her skull and brain. (Id. p. 2311.)
When investigating officers lifted the comforter, Diane’s head was missing from her chin
up. (State’s Lodging A-15, p. 1795.) Blood, skin, hair, brain tissue, and bone fragments
spattered across the ceiling and walls, into the hallway, and onto the wall of Sarah’s
bedroom directly across the hall. (State’s Lodgings A-15, A-16.) From the spatter pattern,
Detective Stuart Robinson (Detective Robinson) testified that the shooter had stood on
the east side of the bedroom, because the blood “basically [went] straight up, and it
[came] out to the west.” (Id., p. 2024.) Expert Rod Engle agreed that “the event occurred
at the east side of the room, projecting all the blood … towards the west and somewhat
towards the north.” (State’s Lodging A-18, p. 4141.)
Alan was shot as he emerged from the shower. The shot went through his left
lung. Forensic pathologist Dr. Glen Groben opined that Alan bled to death from that
wound over the course of several minutes. (State’s Lodging A-16, p. 2304.) From the
blood pattern on the floor, experts determined that Alan had managed to walk over to
Diane’s bedside before he collapsed and died. (Id., pp. 2320-21; State’s Lodging A-18,
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pp. 4145-49.) Alan was found lying face down between the nightstand and bed. (State’s
Lodging A-15, p. 1662.)
Many of the neighbors heard the shots that early Tuesday morning. (State’s
Lodgings A-15, p. 1520; A-16, generally.) Several neighbors testified that two shots were
fired within a few minutes, with the second shot being louder than the first (State’s
Lodging A-16, pp. 2630, 2636.) Shortly after the shots, neighbors heard a female—later
identified as Sarah—outside screaming that “someone had shot her dad” and “someone
had shot her parents.” (State’s Lodgings A-15, p. 1518; A-16, p. 2631.) Sarah sought
refuge at a neighbor’s house. People who came to help and comfort Sarah puzzled over
why her hair was neatly fixed and her casual clothing did not look as though it had been
slept upon. (State’s Lodgings A-15, pp. 1522-23, 1545-47, 1559-60, 1578-79; A-16, pp.
2520-21.)
As police investigators arrived at the scene that early morning, they realized it was
trash day, and pulled the Johnsons’ two trash cans back from the curb. One was filled
with yard debris. The other contained Sarah’s pink bathrobe, covered in blood spatter,
wrapped around a left-hand women’s leather glove and a latex glove. (State’s Lodging A15, pp. 1893-95.)
The left-hand leather glove had no blood on it. Some experts believe it may not
have been worn during the shooting because of the lack of blood spatter. However, the
glove tested positive for gunshot residue. (State’s Lodgings A-20, pp. 5289, 5290; A-18,
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pp. 3592-96.) The latex glove was so old it was discolored. (State’s Lodging A-17, p.
3110.)
Matthew identified the leather glove as being from the set Diane kept in her car in
the garage—Diane and Sarah had worn them at football games, and Diane sometimes
wore them when driving. The Johnsons owned multiple first aid kits containing latex
gloves, including in Diane’s car, Alan’s truck, the garage, Alan’s bathroom, and
Matthew’s bathroom. (State’s Lodging A-19, pp. 4572-75.) When tested, the latex glove
found in the garbage can had Sarah’s DNA and an unknown person’s DNA on the inside
of it, but had no blood on the outside of it. Like the left-hand leather glove, the latex
glove also had gunshot residue on it.
The guest house located over the Johnsons’ garage occupies a prominent place in
the story. About a year earlier, Alan and Diane had rented the guest house to Alan’s
friend, Mel Speegle (Mel), who usually spent Monday through Friday there for a local
construction job, and the weekends in Boise, where he and his wife owned a house. On
Labor Day weekend just before the shootings, Mel decided to spend the holiday with his
wife in Boise, rather than return to the guest house. (State’s Lodging A-16, pp. 2686-94.)
Before moving into the guest house, Mel had inherited several guns when his
father passed away, and Mel had kept them at a ranch. Mel’s friend, Christopher Hill
(Christopher) was the ranch caretaker. Mel eventually sold the ranch, and Christopher
helped Mel move into the guest house. There, Mel stored the unlocked guns in his closet
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under some clothes. Mel kept the door to the guest house locked when he was away.
(State’s Lodging A-16, pp. 2692, 2702-09.)
Sarah knew Mel was gone that long weekend, and she had a key to the guest
house. The key was found on a small table in Sarah’s bedroom on the day of the murders.
(State’s Lodging A-15, p. 2037.) Sarah was familiar with Mel’s place, had cleaned it for
him on earlier occasions, and had also entertained her friends there from time to time.
(State’s Lodging A-16, p. 2689.)
The Labor Day weekend brought Diane’s sister, Linda Vavold, for a visit to the
Johnsons’ house. Linda observed that Sarah had spent time in the guest house. Sarah had
said she was studying. School had started only four days earlier. Linda testified that when
she saw Sarah go to the guest house, Sarah was not carrying books or a backpack.
(State’s Lodging A-17, pp. 3335-56.)
On the day of the shootings, investigators found four different types of
ammunition and three guns at the Johnsons’ property. Included in the collection of
inherited guns kept unlocked in Mel’s closet was the .264 caliber high-power rifle used to
kill Alan and Diane, along with a box of .264 bullets. That gun was found in Alan and
Diane’s bedroom. Two unused .264 bullets were found in Sarah’s room on a nightstand.
(State’s Lodging A-15, pp. 2039-40.) A spent .264 shell casing was found in the garage.
(Id., pp. 2051-53.)
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Mel also kept an unlocked .22 caliber bolt-action long rifle in his guest house
closet. During investigation of the shootings, Officer Raul Ornelas found Mel’s .22 rifle
on a chest freezer in the garage. (State’s Lodging A-15, pp. 1729-31.) It was not used in
the shootings.
Investigators also found a box of Remington .25 caliber bullets with five missing
bullets on an upright freezer in the garage. Five .25 bullets were found in the pink robe’s
pocket. (State’s Lodging A-15, 1900.). While .22 and .25 bullets look somewhat similar,
they are not interchangeable, and the .25 rounds in the robe pocket, taken from the box of
.25 ammunition found in the garage, would not have fit into the .22 rifle left on the
freezer. (State’s Lodging A-15, p. 2050). Investigators theorized that the unanticipated
mismatch was the reason the shooter left the .22 rifle unused in the garage and the .25
bullets in the robe pocket and opted for the .264 rifle.
Alan owned a 9 millimeter handgun, which was found locked in a gun safe in the
garage under the guest house. (State’s Lodging A-15, pp. 2061.) A handgun magazine
containing six unused 9 millimeter bullets was found wrapped in a red bandana on the
bottom shelf of a nightstand in Sarah’s bedroom. (Id., pp. 2038-2040.) The 9 millimeter
magazine found in Sarah’s room appeared to fit the 9 millimeter handgun in the safe. (Id.,
p. 2062.) The weekend before the shootings, Linda heard Sarah ask Diane for the key to
the gun safe. (State’s Lodging A-17, p. 3336.) Diane had told Sarah to ask her dad. (Id.,
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p. 3336.) Investigators also theorized that the 9 millimeter handgun was the shooter’s
original weapon of choice, but it simply was unavailable at the time of the shootings.
Mitch Marcroft, who was the secretary of the Blaine County Gun Club from 2001
to 2004, testified that Alan and Diane were members of the gun club, made up of trap
shooting enthusiasts. Mitch first saw Sarah at the gun club when she was about 13; she
came with her father quite often. Mitch had not observed Sarah shooting rifles, but he
observed her shooting a shotgun at the Miller Fun Shoot in 2002. (State’s Lodging A-18,
pp. 3664-3666.)
Sarah was right-handed, but on the day of the shootings, medical investigators
examined her and found several parallel linear bruise marks on her left shoulder that
could have been made from a rifle recoil. (State’s Lodging A-16, pp. 2248-49.) Another
person later testified at the post-conviction hearing that the .264 gun “kicked really hard.”
(State’s Lodging E-9, p. 967.) Sarah explained the bruises away by saying that she had
fallen and hit her shoulder on a table on Friday before the Tuesday shootings. (State’s
Lodging A-16, p. 2444.)
Quite a bit of additional evidence was found at the scene of the crime. The robe
had dried paint residue on the inside of it; the T-shirt Sarah wore on the morning of the
murders had matching dried paint residue. (State’s Lodging A-18, pp. 3602-3610.) The
robe also had gunshot residue on it. (State’s Lodging A-17, pp. 3231-38.)
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A woman’s right-hand leather glove that matched the left one found in the garbage
can was sitting on a table in Sarah’s room along the west wall. This glove had gunshot
residue and Sarah’s DNA on it, but it did not have the victims’ blood on it. (State’s
Lodgings A-15, pp. 2034-2036; A-17, p. 3240.)
Diane’s blood and brain matter were found in Sarah’s room. A piece of metal
bullet shaving and body tissue were removed from the door jamb of Sarah’s bedroom
door. All of this indicated that Sarah’s bedroom door and her parents’ bedroom door were
open when the shots were fired. (State’s Lodging A-15, pp. 2043-44.)
Two kitchen butcher knives were found on the floor at the foot of Diane’s bed, and
one knife was found at the foot of the guest room bed, where Matthew stayed when he
was home from college. Investigators determined that the knives were not instruments of
the crime. (Id., pp. 2411-2414.) All of the knives came from the Johnsons’ kitchen. (Id.,
p. 2414.)
Investigators were baffled by the placement of the knives in the bedrooms. Sarah
suggested to Sheriff Jerry Femling (Sheriff Femling) that the knives could be a gang sign
that she or her brother were “marked.” (State’s Lodging A-16, p. 2450.) Detective
Robinson then investigated whether the knives were gang-related. Robinson spoke to a
Boise gang unit detective and a Salt Lake City detective, and neither had ever heard of
anything similar regarding how and where the knives were placed at the scene of the
crime. (Id., pp. 2120-21.)
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Officer Raul Ornelas saw two or three sets of human footprints in the matted grass
in the backyard going northeast from the house to the back of the guest house. (State’s
Lodging A-15, p. 1736.) Investigators noted that the path Sarah took to get to her
neighbors’ house went right by the trash cans. (State’s Lodging E-7, p. 284.)
A key figure in this story is Sarah’s boyfriend, Bruno Santos (Bruno), a 19-yearold undocumented Mexican immigrant and high school dropout. They had been dating
for about three months at the time of the murders. Bruno and Sarah had engaged in sexual
intercourse and had exchanged “promise” rings. (State’s Lodging A-16, p. 2440.) Sarah
told several people that she and Bruno were engaged to be married, but she told
investigators that she was not. (Compare State’s Lodging A-18, pp. 3786, 3795, 3833-34,
3844, 3849 with State’s Lodging A-16, p. 2440.) Sarah revealed to investigators that her
parents were not happy with her relationship with Bruno. (State’s Lodging A-16, p.
2440.) Alan had told Sarah that Bruno “was a waste, [and] that he did not want her to see
him.” (Id.)
On the day of the shootings, Bruno claims that he was at home sleeping on a
mattress in the living room of his family’s apartment when Jane Lopez, his adult female
cousin who worked at the high school, called him to say that a school administrator had
just made an announcement that Sarah’s parents had been killed. (State’s Lodging A-16,
pp. 2764-65, 2789-2793.) She told Bruno to stay home, but Bruno wanted to go to the
scene to find out for himself what had happened. (Id., pp. 2765-66, 2793.)
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When Bruno arrived at the scene, he gave investigators permission to search his
car. (State’s Lodging A-16, p. 2766.) Later, pursuant to a warrant, Bruno gave DNA
samples at the hospital, surrendered the clothing he was wearing, and had his home
searched. (Id., pp. 2766-67.) A witness noticed that, when Sarah approached Bruno to
hug him at the hospital where they were both providing DNA samples to determine
whether they were involved in the shootings, Bruno did not return Sarah’s embrace, but
stood very straight, his arms at his side, showing no emotion toward her. (State’s Lodging
A-18, p. 3628.) Bruno was cleared as a suspect and called as a State’s witness at trial.
Beyond the physical evidence at the crime scene, investigators learned that Sarah
and her mother had had a rocky relationship for several years, and that the shootings took
place on the heels of several contentious incidents between Sarah and her parents over
Bruno.
The evidence at trial showed that Sarah argued and fought with her mother often.
(State’s Lodging A-19, pp. 4521-23.) The fighting included physical altercations. (Id.) A
neighbor, Dorothy Schinella (Dorothy), testified that Sarah said “that she absolutely
could not stand her mother.” (State’s Lodging A-16, pp. 2507-08.) Dorothy testified that,
a year before the shootings, she heard Diane weeping in the backyard, Sarah yelling in
the house, and Alan saying to Sarah, “You go out there and you apologize to your mom.”
(Id., pp. 2508-09.) Several months before his death, Alan had told Dorothy that Sarah
treated Diane in a mean and ungrateful manner, even though Diane did many kind things
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for Sarah. (State’s Lodging A-16, pp. 2549-50.) A fellow jail inmate testified at trial that
Sarah “thought her mom was a bitch.” (State’s Lodging A-18, p. 3847.)
In the weeks before their deaths, Diane and Alan had forbidden Bruno from
attending a family wedding at their house, which made Sarah upset. (Id., pp. 2769-70.) A
few days before the deaths, Sarah had lied to her parents, saying she was spending the
night at a girl friend’s house, but instead had spent the night at Bruno’s apartment. Alan
and Diane had desperately called around to find her. (State’s Lodging A-15, p. 1610.)
When Alan had learned that Sarah was at Bruno’s, he went to confront Bruno and bring
Sarah home. (State’s Lodging A-16, p. 2762.) Alan told Bruno, “If you don’t leave Sarah
alone, I’m going to hit you and put you in jail.” (Id.) Sarah said Alan “was devastated”
over the spend-the-night incident, and that he “cried over” it. (Id., pp. 2441, 2450.)
Alan and Diane grounded Petitioner from using her car after Alan found her at
Bruno’s. (State’s Lodging A-15, pp. 1610-11.) Alan and Diane spoke to Sarah about
bringing statutory rape charges against Bruno. Sarah was concerned and said, “he’s 19
and I’m 16, and you, know, I didn’t want him to go to jail.” (State’s Lodging A-16, p.
2442.) After Bruno turned against Sarah to testify for the State, she told a fellow jail
inmate that “when this was all over, … she would be out on the outside, and Bruno would
be the one incarcerated.” (State’s Lodging A-18, p. 3849.)
Several people testified that Sarah was not acting like herself shortly before the
shootings. They thought it was odd that Petitioner stated, in an uncharacteristic manner,
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that she agreed with the reasoning for being grounded. (State’s Lodging A-16.) Witnesses
also testified that, at volleyball practice the evening before the murders, Sarah was
serious and solemn, played harder and better than she had before, and did not engage in
laughter and conversation with her teammates. Bruno described Sarah’s mood as “weird”
on the evening before the shootings. (State’s Lodgings A-16, p. 2764.)
Sarah did not testify at trial, but the prosecution brought forward an unusually
large number of witnesses who testified about an unusually large number of variations in
Sarah’s description of the events surrounding the shootings. Sarah told Kim Richards, the
woman who initially sheltered Sarah at her house after the shooting, two different stories
within minutes of her arrival. (State’s Lodging A-15, pp. 1520; 1528-29.) Earlier in time
Sarah said or implied that her bedroom door was closed or barely cracked-open; later, she
said Diane sometimes left it open after she kissed Sarah good-night. Sarah said that she
was awakened by Alan’s regular early-morning shower; other times she said she was
awakened by the first gunshot. Instead of running straight across the hall to her parents’
bedroom, Sarah told investigators she ran through the Jack and Jill bathroom, through the
guest room, and into the hall. In some versions, she said she merely approached the door
of her parents’ room, which was propped open with a pillow, and listened; in others, she
knocked on the door and called out to her mom (who did not respond); to a friend, she
said she went to her parents’ closed bedroom door and heard arguing before calling out to
her mom; to some people she said she heard the second shot while she was in bed, and, to
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others, that she heard it when she was standing in the hallway in front of her parents’
bedroom. Once she said he heard a body falling. Several times she stated that she heard a
sliding glass door open or close, and then other times she said she heard the front door
open or close. Once she stated she heard someone take off running out the front door.
Early in time, she said he did not look in her parents’ bedroom and did not see anything.
Later on, she said that she saw blood on the walls and floor and saw the bathroom light
shining on the bed; she said she would have to live forever with what she saw. (State’s
Lodgings A-15, pp. 2099-2101; A-16, pp. 1750, 1748-40, 1750, 1812, 2427-2429; A-18,
pp. 3529, 3687-3688, 3820.)
Sarah’s stories about what she heard, saw, and did after the shootings are
accompanied by a subplot—that a cleaning lady from Whirlwind Services had killed her
parents. This subplot emerged immediately. Within a few hours of the shootings, Lorna
Kolash (Lorna), Sarah’s godmother, came to visit her at the Richards’ home. When Lorna
had asked what had happened, Sarah did not talk about the shooting incident that had just
taken place, but instead had responded:
The cleaning lady came, she took a bunch of my
mom’s stuff. She had been harassing my mom, she called her
on the phone. She came to volleyball, yelled at her. And I
heard them arguing in the middle of the night, and I got up.
The lights were on outside, and I got up, and I asked
my dad and my mom what was going on. And they told me it
was just the cleaning lady, don’t worry about it, go back to
bed.
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(State’s Lodging A-18, p. 3622.)
Similarly, Sarah told Karen Chase, Diane’s first cousin, that the cleaning lady had
confronted Diane at a volleyball game. (Id., pp. 3720-021.) No one corroborated the
allegation that the cleaning lady had confronted Diane at a volleyball game. (State’s
Lodging A-18, pp. 3713-14.)
Sarah told investigators that, when she returned from volleyball practice on
Monday night, she found Diane upset and crying because the cleaning lady had called
and threatened her. Sarah reported that the cleaning lady had told Diane that she had been
fired from Whirlwind Services and now had no way to support her child. Diane allegedly
told Sarah she intended to call police the next morning to report the stolen lotion.
An implausible element of Sarah’s cleaning lady story is her story about having
woken up at about 2:30 a.m. on the day of the shootings because she heard someone in
the backyard. She said she immediately had woken up Alan and Diane, who looked in the
backyard, saw a light on in the guest house even though Mel was out of town, identified
the trespasser as the enraged cleaning lady, but did nothing about it. These allegations
make little sense in the context of the rest of Sarah’s story. Testimony at trial indicated
that Alan was very protective of his family—such as his action in retrieving his daughter
from Bruno’s—and would never have gone back to bed without calling the police or at
least letting the dog out of the kennel if the threatening cleaning lady or other stranger
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had trespassed on their property in the early-morning hours. (State’s Lodging A-19, p.
4592.)
At trial, the prosecutor was especially thorough in calling all of the subplot
characters as witnesses. The subplot played out this way. The family wedding that had
been the subject of the dispute between Sarah and her parents went forward at the
Johnsons’ property as planned, albeit without an invitation being extended to Bruno.
As a surprise thank you to Diane for hosting the wedding, a relative had hired
Whirlwind Services to do a one-time post-wedding house cleaning. (State’s Lodging A18, pp. 3758-60.) Robin Lehat, who owned Whirlwind, and one employee, Janet Sylten,
had cleaned Diane’s house. After the cleaning, Diane had called Robin and said a new
bottle of Estee Lauder lotion was missing. (Id., p. 3762.) Robin then asked Janet about
the lotion because Robin noticed Janet had several Estee Lauder products. Janet had
denied taking it and refused to return to Diane’s to help Robin look for the lotion. (Id., p.
3763.)
Robin and Diane had spoken again and decided that Robin would make up for the
lost lotion by giving Diane a cleaning credit in the future. (Id., pp. 3761-64.) The owner
testified that Diane had been “really nice” about the whole thing. (Id., p. 3764.) Several
witnesses testified that Diane had discussed the missing lotion incident with them, had
not seemed angry about it, had not said she was going to call the police, and had seemed
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quite pleased with the resulting compromise that she would receive a discounted cleaning
in the future. (State’s Lodging A-18, pp. 3761 to 3764.)
Janet lived on Robin’s property. Janet testified that her current boyfriend, Russ
Nuxoll, was Robin’s ex-boyfriend. Not surprisingly, Robin and Janet had been having
problems with each other before the lotion incident. Janet testified that she had refused to
go to Diane’s house to look for the lotion because she already had planned to help Russ
with his hand-made willow furniture manufacturing business that day. While Janet was at
Russ’s, Robin put all of Janet’s belongings outside and left her a note that she was fired.
(State’s Lodging A-16, p. 232.) Janet testified that she was not really upset over being
fired from Whirlwind, because she preferred working at her other job building furniture
with Russ. (Id., p. 2814.)
After Robin and Janet parted ways, Robin changed the locks on her property.
Robin testified that Janet and Russ broke in and took some things, including a gift that
Russ had given to Robin when the two had dated in the past. (State’s Lodging A-18, pp.
3777-79.)
Robin, Janet, and Russ all cooperated with investigators and provided DNA and
fingerprint samples. When Captain Edward Fuller (Captain Fuller) interviewed Janet and
Russ the first time, they were somewhat reluctant to speak, not knowing why they were
being interviewed. Nothing they said or did during the interview indicated that they had
any awareness that the Johnsons had been killed. Between interviews, Janet and Russ
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read the newspaper and learned that the Johnsons had been murdered; Janet and Russ
freely spoke to Captain Fuller after they were aware that was the reason they were being
interviewed. Janet and Russ had no clear alibis—they camped out in a wilderness area
instead of having a permanent residence. Janet allowed Captain Fuller to search her
belongings. (State’s Lodging A-17, pp. 2886-2910.) None of the DNA or fingerprints
from the crime scene matched Robin, Janet, or Russ, and they all were cleared as
suspects.
As could be expected, both the prosecution and the defense relied on expert
witnesses to try to explain to the jury the meaning of the physical evidence. The State’s
experts theorized that, because there was blood spatter form both parents on Sarah’s robe
and blood on the bottom of her socks, without a doubt, she was the shooter—having worn
the robe backwards to protect her clothing and then discarded it. Contrarily, Sarah’s
experts theorized that, because there was no blood spatter on her hair, face, the tops of
her socks, or her pants, she definitely was not the shooter.
The experts at trial did agree that both bedroom doors must have been open when
Diane was shot, because Diane’s blood and tissue flew into the hallway and into Sarah’s
bedroom, directly across the hall from her parents’ room. To the extent that Sarah said or
implied that her door or her parents’ door was shut at the time of the shootings, that part
of the story obviously was false. Similarly, the blood on the bottom of Sarah’s socks is
inconsistent with those versions of her story in which she said she knocked on her
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 19
parents’ door and called out to her mother but did not see anything, because—after the
first shot—blood, brain matter, clumps of hair connected to body tissue, and skull
fragments sprayed into the hallway. With the indisputable facts of the open doors and the
bloody aftermath from the close-range shot to Diane’s head and Alan’s walk from
bathroom to bedside with blood pouring from his wound, it seems impossible for Sarah to
have seen nothing and still gotten blood on the bottom of her socks.
Sarah’s trial defense—and her continuing assertion of actual innocence—is that
someone else wearing Sarah’s pink robe killed her parents; otherwise, Sarah would have
had blood spatter on her person and clothing. The prosecution tried to show that Sarah
shot Diane through the comforter and sheet to shield herself from blood spatter. The
experts had access to the sheets, but only to photographs of the comforter, because
investigators did not retain the comforter as evidence. Prosecution experts opined that
there were bullet holes in the comforter and the upper sheet. Defense experts believed (1)
there were no bullet holes, or (2) existing holes did not bear the characteristics of being
shot with a high-power rifle (soot marks, a large size, and stellate tearing of the fibers
along specific lines), or (3) the holes could have been caused by propelled bone or skill
fragments. (Compare State’s Lodgings A-15, pp. 1970-74; A-16, p. 2314; and A-18, pp.
4181-91, 4200; with A-19, pp. 4390, 4405-06, 4861-62; A-20, pp. 5272-73, 5657-5689.)
Tim Richardson (Tim), a neighbor first on the scene, said he did not see any blood
on the top of the comforter that was covering Diane’s body. He thought that was
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 20
unusual—that there was no blood seepage up through the top. (State’s Lodging A-15, pp.
1600-01.) George Dondero, a second neighbor accompanying Tim, also said he saw no
blood on the top of the bed. (Id., p. 1636.)
Officer Ross Kirtley (Officer Kirtley), the first police officer on the scene, testified
that he saw blood on the lower portion of the comforter toward the foot of the bed, which
was the side of the bed closest to the sliding glass door. (Id., p. 1719.) It was “almost
right on the corner, and on the side; it was a swipe, or it was a smear of some sort.”
(State’s Lodging A-20, p. 5228.) That observation was consistent with Alan having
moved from the bathroom, where he was shot, to the bedside, where his body was found.
Officer Randy Tremble (Officer Tremble) saw blood trailing up the headboard to the wall
above it, but no blood on the blanket was immediately visible. He observed no pooling of
blood nor very obvious spatter on the outside of the comforter. (State’s Lodging A-15, p.
1792.)
Michael Howard (Howard), a forensic scientist called by the defense, opined that
the bottom sheet had to have been exposed at the time of the shooting, because there were
blood droplets and pieces of tissue on it. (State’s Lodging A-19, pp. 4769-76.) He
concluded that Sarah could not have been the shooter, because the blood spatter would
have settled on her clothing, and an “extremely thorough examination [was] done by
several laboratories of Sarah Johnson’s clothing, and absolutely no blood was detected.”
(Id., pp. 4786-87.)
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Prosecution expert and crime scene reconstructionist Rod Englert (Englert) opined
that blood spatter would not necessarily have gotten everywhere. There was a void of
blood spatter on the ceiling “from the light switch over and back to the east,” a “void on
the east wall,” and a void on Diane’s upper shoulder, indicating that she was covered, he
testified. (State’s Lodging A-18, pp. 4134, 4167-68, 4183.) It was his opinion that the
void on the ceiling, marked by a “well-defined line,” was created by “something down
below at the origin of that blood … blocking it from going up …, and creating [a] void.”
(Id., p. 4138-39.) Otherwise,” he explained, “you’d have it all over the ceiling, 360
degrees.” (Id.) The “void is consistent with the comforter having covered her.” (Id., p.
4181.)
Englert theorized that the gun was placed behind Diane’s head, and the shot was
fired pointing in a westerly direction to cause the spatter to go the direction it did. (Id., p.
4140.) The defense expert, Howard, agreed that the shooter had to stand on the east to
cause “the heavy stuff going upwards and westward.” (State’s Lodging A-19, p. 4871.)
Englert opined that, if Diane was shot through or under the sheet, that would immediately
explain what could have blocked the blood spatter and made the defining line on the
ceiling and on the wall, and why there was only mist and so little body debris on the robe.
(State’s Lodging A-18, pp. 4181.)
Englert would not expect the shooter to have a large amount of blood on their
person, their face, or their hair. (Id., p. 4212.) Defense expert Rocky Mink disagreed,
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 22
opining that anyone standing in the room would have had misted blood and blood spatter
on them, which he said was confirmed by the reconstruction experiments he conducted.
(State’s Lodging A-20, p. 5652.)
The evidence showed that Sarah had washed her face twice before hospital
examiners swabbed her. Samples from Sarah’s hair, face, ears, earrings, nostrils, and
other exposed areas of skin were taken to be tested for traces of blood and tissue. (State’s
Lodging A-15, pp. 1871-72.) The tests were negative. There was no evidence that Sarah
had showered (id., pp.1875-76), but a bath towel was found with one end draped over the
edge of Sarah’s tub, and the rest of the towel extending down onto the floor. (Id., p.
1903.) Experts disagreed whether Sarah could have washed the blood from her—one said
yes, and the other said no, because the tests are designed to detect minute traces of blood.
Sarah’s brother testified that she kept a shower cap in her bathroom. It is possible that she
pulled it down over her face to shoot and then flushed it down the toilet or discarded it
somewhere else. Howard agreed that a shower cap “would keep blood from showing up
on somebody’s head.” (State’s Lodging A-19, p. 4898.)
Experts did not find significant blood splatter from Diane on the high power rifle.
(State’s Lodging A-19, pp. 4900-02.) And yet, the experts were certain that was the
weapon that had killed the Johnsons.
Fingerprint and DNA evidence figured prominently in the battle of the trial
experts. A big part of the dispute centered on the length of time fingerprints could last on
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 23
a non-porous surface, such as smooth gun metal, as opposed to porous surfaces, such as
cardboard, where a fingerprint can be absorbed into the material and last indefinitely. An
excellent summary of the evidence from both sides is contained in the state district
court’s order on post-conviction review:
At trial, Tina Walthall (Wathall), a finger print
examiner with the Idaho State Police, testified that she
received fingerprint cards from Johnson, Bruno Santos, Alan
Johnson, Diane Johnson, Mel Speegle, Janet Sylten (the
cleaning lady), Russell Nuxoll (the cleaning lady’s
boyfriend), Matthew Johnson (Johnson’s brother) and Robin
LeHat (the cleaning lady’s employer).
Walthall used these print cards to compare with the
prints lifted from the crime scene. After those comparisons,
certain fingerprints taken from the crime scene remained
unidentified, including fingerprints found on the stock of the
[.264] rifle, the scope from the rifle, and two boxes of .264
shells.
A search of the Automated Fingerprint Identification
System (AFIS) prior to trial using three of the unidentified
prints also revealed no match to any of the unidentified
fingerprints.
Walthall repeatedly testified that there is no way to
date a fingerprint to determine when it was left. Walthall
specifically stated: (1) “many, many years can pass and you
might still find usable fingerprints on” paper or cardboard; (2)
she has discovered prints off of nonporous surfaces more than
a year later; (3) one would expect to find fingerprints more
than a year old if nothing happened between “when they were
deposited and when [they were] processed”; and (4) “it is
probable that a fingerprint would last up to and exceeding a
year, providing there has been nothing to damage that
fingerprint in the interim,” which is true even on a nonporous
surface.
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The defense called [Robert] Kerchusky to testify at
Johnson’s trial, and again before this court [on postconviction review].
During the trial, Kerchusky was asked by Pangburn
how long fingerprints can last. He replied, “we can’t be sure
how long they’re going to last,” but that “pretty much on my
experience, after a year, they’re just about gone, as far as I’m
concerned,” [specifically addressing his opinion that latent
prints on a nonporous surface will not last more than a year].
Kerchusky further testified that fingerprints will dry up
and evaporate over the course of one year. Kerchusky also
agreed, however, that it is fair to say that a fingerprint on a
box could last for years and years and years.
Mr. Kerchusky, however, acknowledged that aging of
fingerprints on nonporous surfaces is a controversial subject
because “there’s so many variables as far as weather, where
it’s located. I mean there’s so many things that come into it,
there’s no way in the world that anybody could write any
article on it.”
Kerchusky also acknowledged that fingerprints on
porous surfaces can last for years and that there are some
“rare” instances where a latent print that was over a year old
could be found on a nonporous surface. Kerchusky further
testified that although he could not determine how old a
fingerprint is, he “still would have an opinion as far as
whether it’s a fresh print or not.”
In 2009, approximately four years after Johnson’s
criminal trial, Walthall compared the unidentified prints from
the murder scene to prints belonging to Mr. Christopher
Kevin Hill [—who turned out to be a friend of Mel Speegle].
Walthall testified at the post-conviction evidentiary hearing
that, of the previously unidentified fingerprints, Hill’s
matched those that were found on the scope, the boxes of
ammunition, and the [.264] rifle.
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 25
Kerchusky … referred to the prints on the rifle, scope,
and ammunition (Christopher Kevin Hill’s prints) as “fresh”
because, according to him, any prints left on the gun before
Mr. Speegle put it in his closet would have been wiped off by
the clothes hanging in his closet and because the prints were
not “etched” into the metal of the gun.
(State District Court Findings of Fact, Post-Conviction Case, State’s Lodging E-7, pp.
253-54.)1
The jury was aware that there was a set of matching fingerprints on the scope, the
high-power rifle, and the box of shells, and that the set did not match any of the carded
fingerprints collected by investigators. (State’s Lodging F-7, p. 6.) The jury did not know
that the fingerprints belonged to Christopher, because that match was not made until
about six years after trial. The jury knew that the shooter took care not to leave any
fingerprints on the trigger, trigger guard, or bolt lever. It is unlikely that the shooter
would have been so careless to leave fingerprints elsewhere on the gun and ammunition.
In fact, hoping to leave past fingerprints on the gun and scope rather than wiping it clean
could have been part of the shooter’s plan to inculpate those who had previously handled
the gun, like Mel and Christopher, diverting blame from the real shooter.
Sarah’s trial lasted approximately three weeks. She was represented by lead
attorney Bob Pangburn and second chair attorney Mark Rader. The State was represented
by Blaine County Prosecuting Attorneys Jim Thomas and Justin Whatcott. Fourth
This Court notes it is somewhat unclear whether the clothes were hanging above Mel’s guns or lying on
the top of the guns.
1
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Judicial District Judge Barry Wood presided at the trial, because the venue had been
changed from the Fifth Judicial District in Blaine County across the state to Ada County.
The jury convicted Sarah of both counts of first degree murder and a firearm
enhancement. On June 30, 2005, she was sentenced to two concurrent fixed life sentences
for the first-degree murders of Alan and Diane Johnson, plus a 15-year weapon
enhancement. (Dkt. 1, p. 1.) Sarah asked that an appeal be filed on her behalf, but trial
counsel failed to do so. (State’s Lodging A-10, pp. 75-78.) New counsel filed a postconviction action and a motion for new appeal for Sarah on April 19, 2006, which were
heard by Fifth Judicial District Judge G. Richard Bevin. (State’s Lodgings E-1 to E-8.)
Sarah prevailed on the appeal issue. An amended judgment was entered in the criminal
case, whereupon Sarah was permitted to file a direct appeal. (State’s Lodgings A-10, pp.
61-86; C-1 to C-8.)
In the reinstated direct appeal action, the Idaho Supreme Court affirmed the
judgment on June 26, 2008 (State’s Lodging C-7), and the United States Supreme Court
denied Sarah’s petition for writ of certiorari on December 1, 2008. Petitioner also
appealed from the portions of the first post-conviction action that were denied by the state
district court. The denial of the first post-conviction action was affirmed by the Idaho
Supreme Court. (State’s Lodging F-7.)
Years later, on April 9, 2012, Sarah filed a successive post-conviction petition and
a request for new DNA testing in state court, after she discovered the three matching
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 27
fingerprints belonged to Christopher. Both requests were denied, with the denials
affirmed on appeal. (State’s Lodgings G-1 through H-8.) The United States Supreme
Court denied Sarah’s petition for writ of certiorari. (State’s Lodgings I-1 to I-4.)
The Idaho Supreme Court upheld the state district court’s conclusion that the
request to retest the DNA samples that were too small to be tested in 2003 did not have
the scientific potential to produce new evidence that would show it is was more probable
than not that Johnson was innocent. (State’s Lodging H-8, p. 14.) To make that
determination under state law, the district court examined the totality of evidence of guilt
from trial through post-conviction review. See id. at 1253. The district court reasoned and
concluded:
Further testing might reveal the source of DNA
samples found on Johnson’s robe, on the gun and elsewhere,
but that knowledge does nothing to establish that the source
of those samples was present in the Johnson’s home on the
morning of the crime, that the source of those samples was
the shooter, or that Johnson didn’t aid and abet the murderer
of her parents. Consequently, because an analysis of
previously untestable DNA samples will not make it more
probable than not that Johnson is innocent, her request for
DNA testing will not be granted.
Id. at 1253–54. (State’s Lodging G-1, p. 247.)
Sarah did not suggest any viable motive that Christopher Hill might have had to
kill Alan and Diane. He had met them only once. There was no forced entry into either
the main house or the guest house. There was no indication that robbery was a motive
and nothing was reported stolen. Sheriff Femling testified that he observed “valuables
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 28
lying around” in both the main house and the guest house. (State’s Lodging A-16, pp.
2414-2415.)
Christopher testified that, on the evening before the murders, he was camping out
in his truck by himself some twenty miles away on open land. He did not have a
particular alibi at the hearing, but said his surrounding neighbors would have seen his
truck parked there that morning. (State’s Lodging E-9, pp. 963-975.) There is no
evidence showing that Christopher was near the crime scene in the early morning hours
on September 2. The state district court specifically found Christopher credible when Hill
testified at the post-conviction hearing. (State’s Lodging E-7, p. 88.)
Sarah argued for the first time on successive post-conviction review that the
cleaning lady, Janet Sylten, and Christopher Hill conspired to murder the Johnsons.
However, as the State pointed out in its state court briefing:
Johnson presented no actual evidence of any “connection”
between Hill and Sylten. Indeed, Johnson never asked Hill
about his relationship, if any, with Sylten, nor did she call
Sylten as a witness at the hearing in an effort to establish any
sort of relationship between Sylten and Hill. The lack of any
evidence of this speculative “connection” is sufficient to
reject Johnson’s argument that it would be likely to produce
an acquittal.
(State’s Lodging F-2, p. 24 (internal record citations omitted).)
With this background, the Court turns to the motions at issue.
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 29
RESPONDENT’S MOTION FOR PARTIAL SUMMARY DISMISSAL
Respondent has moved to dismiss Claims One, Three, Four, Five and Six of the
Amended Petition on procedural default grounds. (Dkt. 8.)
1. Standard of Law Governing Procedural Default
Federal habeas corpus relief under 28 U.S.C. § 2254 is available to petitioners who
show that they are held in custody under a state court judgment and that such custody
violates the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 2254(a).
The Court is required to review a habeas corpus petition upon receipt to determine
whether it is subject to summary dismissal. See Rule 4 of the Rules Governing Section
2254 Cases. Summary dismissal is appropriate where “it plainly appears from the face of
the petition and any attached exhibits that the petitioner is not entitled to relief in the
district court.” Id.
A habeas petitioner must exhaust his or her remedies in the state courts before a
federal court can grant relief on constitutional claims. O’Sullivan v. Boerckel, 526 U.S.
838, 842 (1999). To do so, the petitioner must invoke one complete round of the state’s
established appellate review process, fairly presenting all constitutional claims to the state
courts so that they have a full and fair opportunity to correct alleged constitutional errors
at each level of appellate review. Id. at 845. In a state that has the possibility of
discretionary review in the highest appellate court, like Idaho, the petitioner must have
presented all of his federal claims to that court. Id. at 847. “Fair presentation” requires a
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 30
petitioner to describe both the operative facts and the legal theories upon which the
federal claim is based. Gray v. Netherland, 518 U.S. 152, 162-63 (1996).
The mere similarity between a federal claim and a state law claim, without more,
does not satisfy the requirement of fair presentation. See Duncan v. Henry, 513 U.S. 364,
365-66 (1995) (per curiam). General references in state court to “broad constitutional
principles, such as due process, equal protection, [or] the right to a fair trial,” are likewise
insufficient. See Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999).
When a habeas petitioner has not fairly presented a constitutional claim to the
highest state court, and it is clear that the state court would now refuse to consider it
because of the state’s procedural rules, the claim is said to be procedurally defaulted.
Gray, 518 U.S. at 161-62. Procedurally defaulted claims include those within the
following circumstances: (1) when a petitioner has completely failed to raise a claim
before the Idaho courts; (2) when a petitioner has raised a claim, but has failed to fully
and fairly present it as a federal claim to the Idaho courts; and (3) when the Idaho courts
have rejected a claim on an adequate and independent state procedural ground. Id.;
Baldwin v. Reese, 541 U.S. 27, 32 (2004); Coleman v. Thompson, 501 U.S. 722, 750
(1991).
To be an “adequate” state ground, a procedural bar must be one that is “‘clear,
consistently applied, and well-established’ at the time of the petitioner’s purported
default.” Martinez v. Klauser, 266 F.3d 1091, 1093-94 (9th Cir. 2001) (quoting Wells v.
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 31
Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)). A state procedural bar is “independent” of
federal law if it does not rest on, and if it is not interwoven with, federal grounds. Bennett
v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003).
2. Discussion
A. Claim One
Claim One is that the district court failed to remove sua sponte, or obtain
unequivocal assurance from, Juror 85, who said he did not know if he could follow the
court’s instructions. Sarah asserts the presence of Juror 85 on the jury violated her Sixth
Amendment right to a jury trial and Fourteenth Amendment right to a fair trial. Sarah
raised this issue on direct appeal, but the Idaho Supreme Court declined to rule on the
merits of this claim for failure to raise it in the trial court. Respondent argues that this
claim is procedurally defaulted in federal court, because the Idaho Supreme Court’s
preliminary look at the claim for procedural purposes should not tie its hands as a
decision on the merits when that was not the intent of its limited review. Because the
procedural default issue is complex and the claim is without merit, the Court will forgo
the procedural default analysis and deny the claim on the merits.
During voir dire, Juror 85, a hydrologist by profession, answered affirmatively
when asked if he thought he could be a fair and impartial juror in the case. (State’s
Lodging A-12, pp. 414-15.) Near the end of voir dire, after Sarah passed the panel for
cause, the judge asked if anyone had any final reason he or she believed would prevent
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 32
them from sitting as a fair and impartial juror in the case. (Id., p. 512.) Juror 85 then said:
“I feel it would be difficult to—if somebody presented evidence and it was thrown out on
say a technicality, I think it would still weigh heavily on my mind.” (State’s Lodging A12, p. 512.) The Court asked for more explanation. (Id.) Juror 85 responded: “I’m not
sure how these things work. However, if evidence was presented by a specialist, and then
for some reason you would tell us to completely disregard that, and I felt that it was good
evidence, then I don’t know if I could completely disregard it.” (Id., pp. 511-12.)
The trial judge then explained:
The admissibility of evidence—and you’ll receive a
jury instruction on this, but the admissibility of evidence
during the course of a trial is governed by the rules of law, all
right, and there can be a lot of reasons why something is
either admitted or not admitted.
The only time I would tell you to disregard it is if the
evidence came in before somebody could make the objection.
Usually, that happens beforehand. But I will ask counsel to
note that, abut I appreciate your concern and your candor.
( State’s Lodging A-12, p. 513.)
The trial judge finally explained to the entire group:
One of the things I’m asking you people is I
understand that sometimes it’s a process. You know, someone
may say something that takes a while for whatever reason to
take action or fully comprehend or whatever.
What we want to do while we still have a big enough
group here is if someone really has something they need to
talk about, that we talk about it now.
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 33
* **
I’m clearly not trying to discourage anybody from
serving or any of that. I just want to know if there’s any lastminute “on, you know, I probably should have told you
something.” Or “I talked to my boss and he really doesn’t
want me there” or, you, know, whatever.”
(Id., pp. 514-15.)
The trial judge indicated that jurors with questions would be taken to chambers to
privately discuss their concerns. Among the jurors who raised their hands to participate
was Juror 85. (Id.) In the review of these jurors, the following colloquy occurred:
Judge:
With respect to number 85, the hydrologist, his
concern was if the court rejected some evidence
that he thought should be in. I’ll leave this to
you people, if you want to talk to him more or
not. You guys can decide that, all right.
Let’s start with number 2.
Law Clerk:
2, 19?
The Court:
45. I don’t know that we need 85. Do you want
85 or not?
Mr. Thomas: I don’t think so.
Mr. Pangburn: No.
The Court:
No, he stays. 2, 19, 45, 86, 105 and then—
(Id., p. 516.)
The proper standard for determining whether a juror is qualified to sit on a jury is
“whether the juror’s views would ‘prevent or substantially impair the performance of his
duties as a juror in accordance with his instructions and his oath.” Wainwright v. Witt,
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 34
469 U.S. 412, 424 (1985). Potential jurors must be dismissed from the juror pool where
they make it “‘unmistakably clear’ that they could not be trusted to ‘abide by existing
law’ and ‘to follow conscientiously the instructions’ of the trial judge.” Lockett v. Ohio,
438 U.S. 586, 595–596 (1978) (quoting Boulden v. Holman, 394 U.S. 478, 484 (1969)). It
is entirely appropriate for a party to “insist” on a jury comprised of individuals who “will
consider and decide the facts impartially and conscientiously apply the law as charged by
the court.” Adams v. Texas, 448 U.S. 38, 45 (1980).
For example, where a juror unequivocally states that she opposed the death
penalty, that she would not impose it under any circumstances, and that she would not
follow the court’s instructions if placed on the jury, the trial court properly excused her
for cause because her responses “clearly indicated that her views on the death penalty
would have prevented, or substantially impaired, her performance of duty in accordance
with the law and her oath.” Russell v. State, 607 S.2d. 1107, 1112 (Miss. 1992).
In Sarah’s case, the Idaho Supreme Court determined that Sarah waived the right
to object to Juror 85 remaining on the panel:
Counsel for both sides stated that they did not wish to
further question Juror 85. Counsel then questioned other
jurors and after further questioning had the opportunity to
object to those jurors remaining on the panel. Thus, both
attorneys were given the opportunity to again challenge for
cause those jurors who had expressed concern. Nonetheless,
Johnson chose not to further question or challenge Juror 85
after he stated he was unsure whether he could disregard
certain evidence.
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 35
(State’s Lodging C-7, p. 12.) Alternatively, the Idaho Supreme Court concluded:
Johnson has failed to demonstrate she was prejudiced by
Juror 85’s presence on the panel. Juror 85’s concern was that
he may have difficulty completely disregarding evidence
from a specialist. Johnson has pointed to several instances
where the judge instructed the jurors to disregard certain
information. However, in most of those instances either the
evidence did not come from a specialist or after an
appropriate foundation was laid, the evidence was allowed.
The only relevant instance of any such instruction Johnson
pointed to occurred when the judge instructed the jury to
disregard testimony by an expert witness that it was possible
during the manufacturing process of making the latex glove,
someone’s DNA could have gotten inside the gloves. This
single instance of the judge instructing the jury to disregard
evidence presented by a specialist is insufficient to show
Johnson sustained any prejudice by Juror 85’s presence on the
panel.
(Id., p. 13.)
This Court agrees that Sarah waived this issue when her lawyers decided not to
further question Juror 85. Even though Juror 85 still had concerns after the judge’s
explanation, Sarah’s counsel did not think it was necessary to question Juror 85 further.
Sarah’s counsel could have voiced disagreement with the judge’s suggestion to bypass
Juror 85 and asked for further in camera questioning. That would have been a natural and
expected part of advocacy. But they did not. And that is where the element of demeanor
must be considered.
This Court must give adequate deference to the fact that the judge and each
counsel made their individual decisions based upon numerous hours of observing and
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 36
listening to Juror 85—and all of them came to a quick consensus. In comparison, this
Court is merely reviewing a paper transcript. In Uttecht v. Brown, 551 U.S. 1 (2007), the
United States Supreme Court explained the importance of deference to those who
observed the jurors when determining a question about “Juror Z” in that case:
Juror Z’s answers, on their face, could have led the
trial court to believe that Juror Z would be substantially
impaired in his ability to impose the death penalty in the
absence of the possibility that Brown would be released and
would reoffend. And the trial court, furthermore, is entitled to
deference because it had an opportunity to observe the
demeanor of Juror Z. We do not know anything about his
demeanor, in part because a transcript cannot fully reflect
that information but also because the defense did not object
to Juror Z’s removal. Nevertheless, the State’s challenge,
Brown’s waiver of an objection, and the trial court’s excusal
of Juror Z support the conclusion that the interested parties
present in the courtroom all felt that removing Juror Z was
appropriate under the Witherspoon–Witt rule. See Darden,
477 U.S., at 178, 106 S.Ct. 2464 (emphasizing the
defendant’s failure to object and the judge’s decision not to
engage in further questioning as evidence of impairment).
Id. at 17–18 (emphasis added).
Likewise, the United States Supreme Court’s discussion of “Juror Murphy” in
Darden v. Wainwright, 477 U.S. 168 (1986), a case cited in Uttecht, proves to be a fitting
analogy for the Juror 85 question:
The precise wording of the question asked of Murphy,
and the answer he gave, do not by themselves compel the
conclusion that he could not under any circumstance
recommend the death penalty. But Witt recognized that
“determinations of juror bias cannot be reduced to questionand-answer sessions which obtain results in the manner of a
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 37
catechism.” 469 U.S., at 424, 105 S.Ct., at 852. The trial
court, “aided as it undoubtedly was by its assessment of [the
potential juror’s] demeanor,” id., at 434, 105 S.Ct., at 857,
was under the obligation to determine whether Murphy’s
views would “‘prevent or substantially impair the
performance of his duties as a juror,’” id., at 424, 105 S.Ct., at
852. In making this determination, the trial court could take
account of the fact that Murphy was present throughout an
entire series of questions that made the purpose and meaning
of the Witt inquiry absolutely clear. No specific objection was
made to the excusal of Murphy by defense counsel. Nor did
the court perceive, as it had previously, any need to question
further. Viewing the record of voir dire in its entirety, we
agree with the reasoning of the Court of Appeals that the trial
court's decision to exclude this juror was proper. 767 F.2d, at
754.
Id., p. 178.
The Court agrees that the transcript in this case does not support Sarah’s assertion
that her due process rights were violated by Juror 85’s presence on the jury. After
experiencing the entire voir dire session and observing Juror 85 throughout, the judge,
defense attorney, and prosecutor agreed that they did not need to pursue Juror 85’s
concerns any further. The lack of concern by either counsel, and the fact that nothing in
the record shows that Juror 85 unequivocally communicated an inability to be a fair and
substantially unimpaired juror, support the conclusion that the trial judge had no sua
sponte duty to remove Juror 85.
This Court also agrees with the Idaho Supreme Court’s alternative conclusion—
that Sarah is unable to show prejudice. In only one instance did the trial judge order the
jury to disregard expert testimony—and that was speculative and unimportant testimony.
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 38
Some background information is helpful to understand why the order to disregard
a single answer of DNA expert Cynthia Hall (Hall) was inconsequential in light of the
entire record. During testing of the evidence in the State’s DNA lab, a trainee analyst
inadvertently contaminated the testing with her own DNA. When this was discovered,
Hall retested the samples. On redirect examination, the following colloquy occurred:
Hall:
What makes [an identification] unique is that
we are looking at 16 different markers; and it’s
very, very difficult – And again, with a match at
all 16 markers, that is considered a unique
profile; because it’s going to be very difficult to
find two random people in the population that
are going to match at every single one of those
alleles across all 16 markers.
Prosecutor: And by using those 16 markers, is that why
DNA, frankly, is used in so many instances to
accurately determine whether or not someone
was at a scene or not?
Hall:
It determines whether or not someone is the
source of a particular sample.
***
Prosecutor: Did in fact the contamination appear in any of
the samples that were sent to you from this
crime scene?
Hall:
No. It was isolated to the reagent blank, or the
negative control.
***
The purpose of the negative control—There are
actually two negative controls in the process,
which are very similar.
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 39
This particular control is introduced at the very
beginning of the process and is carried through
the entire analytical process. It contains all of
the chemicals and reagents that are used
throughout the process, and I am not adding any
DNA. I’m not physically adding a DNA sample
to that.
The purpose is to test the reagents, to determine
if contaminated reagents were present. And in
this particular instance, there was a
contaminated reagent.
Prosecutor: And this occurred after you tested the latex
glove and the robe, correct?
Hall:
That’s correct.
Prosecutor: And if I understand your testimony correctly,
you stated that you went back and checked the
samples that you had tested with this particular
reagent, and looked at it at a lower threshold, is
that correct?
Hall:
Yes.
Prosecutor: Explain why you did that, just a little bit more
thoroughly.
Hall:
The reason I did that is because the
contaminant, if it was present in a lower
proportion than the DNA from the samples, I
may not have detected it at the normal analysis
thresholds; so I wanted to lower that bar to see
if there was a contaminant present, but at a
lower level than I may not have seen initially.
Prosecutor: And again, even if it were in the samples that
you testified to that you tested, would it affect
the results of the DNA profile of Sarah, Alan,
and Diane?
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 40
Hall:
As I mentioned earlier, it’s not going to change
the DNA results from the DNA that’s present in
that sample. It would show up as an additional
contributor; basically, a mixture in that sample.
Prosecutor: And until you would test it against that known
profile, it would show up as an unknown
profile, correct; unless you tested it against
hers?
Hall:
Right. Prior to comparing it to this analyst’s
DNA, it would have been an unknown in this
particular case.
Prosecutor: You previously testified that based on your
experience, that the gloves that you use,
because they’re not necessarily surgical quality,
are sometimes not sterile, correct?
Hall:
That’s correct. When they’re purchased, they’re
not certified as being sterile. And once the box
is opened, they’re exposed to air, which would
make them nonsterile.
Prosecutor: Is it possible that during the manufacturing
process or packaging process, somebody might
have got their DNA inside that?
Hall:
It’s possible.
Mr. Rader:
Objection.
Mr. Thomas: Your Honor, he’s asked a lot of possibilities.
Mr. Rader.
Objection. I’m not asking—I didn’t ask her
about how the gloves are manufactured, and I
don’t think she has the qualifications to talk
about it.
The Court:
Without a foundation, I’ll sustain the objection.
Instruct the jury to disregard her answer.
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 41
(State’s Lodging A-17, pp. 3197-3202 (portion at issue italicized).)
Reviewing Claim One in context leads the Court to conclude the claim is nearly
frivolous. There was no foundation laid to permit the DNA expert to testify about how
latex gloves are manufactured. This situation could not have posed a great dilemma for
Juror 85—what he was worried about was a situation where an expert was qualified to
testify about something but the court would instruct that specialized knowledge to be
disregarded. All that Juror 85 was asked to disregard here was a foundationless,
speculative answer that it was possible for someone to have gotten their DNA inside the
glove during the manufacturing or packaging process. There was no prejudice from the
instruction to disregard one sentence of testimony addressing a mere possibility.
Finally, even if Juror 85 did not follow the court’s instruction to disregard the
expert’s opinion that someone else’s DNA could have been deposited inside the glove
during the manufacturing process, causing Juror 85 to believe that the unidentified DNA
resulted from a manufacturing error rather than an unidentified shooter, the defense
presented little or nothing to show that someone else was involved in the shootings. The
“disregard” instruction affected only a minute piece of evidence in contrast to the large
body of varied evidence pointing to Sarah as the shooter. The Court agrees that no
prejudice resulted from Juror 85’s presence on the jury. This claim will be denied on the
merits for failure to show that Sarah’s federal constitutional due process rights were
violated. Claim One will be dismissed with prejudice.
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 42
B. Claim Three
Respondent asserts that Claim Three, consisting of four separate Sixth
Amendment ineffective assistance of counsel subclaims, is procedurally defaulted
because Sarah withdrew her subclaims after conceding they were procedurally barred by
Idaho Code § 19-4908, as interpreted by Murphy v. State, 327 P.3d 365 (Idaho 2014). In
Murphy, the Idaho Supreme Court determined that an assertion of ineffective assistance
of initial post-conviction counsel cannot be used to excuse the failure to bring a claim in
an initial post-conviction petition.
When Respondent raised the Murphy issue in a motion for summary dismissal on
successive post-conviction review, Sarah responded:
Murphy now appears to present a bar to [claims 2-5].
Accordingly, [Sarah] will file a Petition for Writ of Habeas
Corpus raising the ineffective assistance of counsel claims. . .
. Now that Palmer has been overruled by Murphy, Martinez
permits [Sarah] to raise the ineffective assistance of counsel
claims in this petition directly in federal court and bypass the
state courts entirely.
(State’s Lodging H-8, p. 19.)
The Idaho Supreme Court concluded that this statement constituted a withdrawal
and “intention to abandon those claims in state court and pursue them in federal court.”
Id. The court particularly determined that it need not address the claims because Sarah
“provided no argument as to why the claims should be allowed despite our ruling in
Murphy.” Id. Therefore, Claim Three is procedurally defaulted in federal court for two
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 43
reasons: primarily, for failure to raise the claims in the first post-conviction petition,
contrary to the Idaho statute governing post-conviction actions; and, secondarily, for
withdrawal of the claims without giving the Idaho Supreme Court an opportunity to
address the claims.
Even after determining the claims were procedurally barred on state grounds, the
Idaho Supreme Court nonetheless addressed and affirmed Murphy to “provide future
guidance.” Id., p. 21. Sarah had argued that the Idaho Supreme Court should overrule
Murphy based on the United States Supreme Court’s decision in Martinez v. Ryan, 566
U.S. 1 (2012). The Idaho Supreme Court rejected that suggestion, reasoning, “[b]ecause
the holding in Martinez is not a constitutional holding, it is not binding on state courts.”
Id.
The Idaho Supreme Court went on to observe: “Martinez simply means such
claims will not be procedurally defaulted in federal habeas proceedings and the federal
court will have to address those claims on the merits.” This Court adds clarification to
that observation. Such claims do not lose their status as being procedurally defaulted, but
Martinez—if applicable—provides an excuse for the procedural default. Martinez is a
very narrow and difficult-to-meet exception, as are the traditional excuses of cause and
prejudice and actual innocence under Coleman v. Thompson, 501 U.S. 722 (1991).
Because the exception is so rarely applied, choosing to “bypass” state appellate
review should be done with extreme caution. Once there is no further mechanism for
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 44
bringing a claim before the Idaho Supreme Court in a procedurally proper way, a
petitioner is free to come to federal court with her claim and her excuse, but, as noted
above, the hurdle to jump before a merits review is granted is very high. Instead of a
“bypass,” it seems prudent to give the Idaho Supreme Court an opportunity to review the
substance of procedurally defaulted claims and to review the continuing efficacy of its
state procedural bars. A common law system means that the law is constantly evolving,
but it often does so only when a particular set of facts meets a particular set of justices. At
some point in time, the Idaho Supreme Court may change its position—which is just
what happened, when—after 20 years of defense attorneys arguing that post-conviction is
essentially the “direct review” for ineffective assistance of counsel claims and should be
treated as such—a particular set of United State Supreme Court justices modified
Coleman v. Thompson in Martinez v. Ryan. Therefore, “bypassing” the high state’s
appellate court may be more harmful than helpful to defendants.
A preliminary review of the four subclaims leaves the Court questioning whether
the claims meet the substantiality threshold of Martinez v. Ryan. As a matter of judicial
efficiency, rather than go through the complicated procedural default excuse analysis, the
Court will first entertain Claim Three on the merits. If any subclaim appears meritorious,
the Court will return to the procedural issues.
In their upcoming briefing on the merits, the parties should address the following:
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 45
(1) Claim 3(A): Intentional Destruction of Evidence
Sarah asserts that trial counsel acted ineffectively in failing to file a motion to
dismiss under Arizona v. Youngblood, 488 U.S. 51 (1988), based on the fact that the State
discarded the comforter covering Diane’s body instead of keeping it for evidence. In
Youngblood, the Court held that “unless a criminal defendant can show bad faith on the
part of the police, failure to preserve potentially useful evidence does not constitute a
denial of due process of law.” Id. at 58.2
There is little, if any, evidence in the record that the comforter was discarded in
bad faith; other items from the room were not collected, such as the telephone, Kleenex
box, or lamp, even though they had blood spatter on them. Photographs of the comforter
were taken, and witnesses testified about the condition of the comforter shortly after the
shootings. A massive amount of evidence was collected, including over 1600
fingerprints. The parties should particularly address whether there is any evidence of bad
faith destruction of evidence.
(2) Claim 3(B): Cleaning Lady’s Parole Status
Sarah complains that her trial counsel failed to present evidence of Janet Sylten’s
parole status at the time of the murders. However, Blaine County Sheriff’s Office Captain
Edward D. Fuller testified in front of the jury that Janet “was initially concerned about
talking to us, based on being on parole. But she was freely talking to us about – about
2
Such “potentially useful information” is to be distinguished from “material exculpatory evidence” addressed in
Brady v. Maryland, 373 U.S. 83 (1953). Illinois v. Fisher, 540 U.S. 544, 548 (2004).
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 46
where she was.” (State’s Lodging A-17, p. 2889.) Fuller also mentioned Janet’s parole
status a second time during his testimony. (Id., pp. 2895-96.) The parties should address
whether these references sufficiently informed the jury of Janet’s parole status. In
addition, if the state post-conviction court made factual findings that apply to this claim,
the parties should address them.
(3) Claim 3(C): Prosecutorial Misconduct
Sarah asserts that her trial counsel failed to object to prosecutorial misconduct
throughout the trial (invoking the sympathy of the jury in the opening statement and
arguing in a manner to suggest that Sarah was required to disprove that she killed her
parents). The parties shall brief the merits of this claim in the next stage of this
proceeding.
(4) Claim 3(D) Jury’s Trip to Crime Scene
Sarah asserts that trial counsel failed to object to the jury’s trip from Ada County
to Bellevue to view the Johnson house (after it had been cleaned of the aftermath of the
shootings). The parties should particularly address whether the failure to object resulted
in prejudice to Sarah’s defense.
C. Claim Four
Sarah asserts that she was denied her Sixth and Fourteenth Amendment rights to
effective assistance of counsel under United States v. Cronic when her appointed counsel
labored through the proceedings under an actual conflict of interest. In particular, she
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 47
asserts that her trial counsel had a dispute with the county over the amount he was to be
paid for his attorney services under their contract. This claim is procedurally defaulted for
the same reason addressed in the section addressing Claim Three, above.
The Court does not see any connection between the subject matter of the conflict
of interest and the work counsel performed for Sarah. The parties will be ordered to brief
this claim on the merits and particularly address the alleged causal connection and any
state court findings of fact related to this claim.
D. Claim Five
Sarah asserts that she was denied her Sixth Amendment right to effective
assistance of counsel on direct appeal on two factual bases: (A) failure to raise district
court error in denying the motion to suppress the testimony of Malinda Gonzalez; and (B)
failure to raise argument that fixed life sentences were both excessive and
unconstitutional. Again, the Court concludes that these claims are procedurally defaulted
based on the reasoning addressing Claim Three, above. The parties will be ordered to
brief this claim on the merits and particularly address the alleged causal connection and
any state court findings of fact related to these claims.
E. Claim Six
1) Procedural Default
Sarah asserts that she was denied her Fifth Amendment right to due process when
the State withheld material exculpatory evidence that the fingerprints found on the scope,
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 48
rifle, and ammunition box insert had been run through AFIS and matched to Christopher
Hill after trial, under Brady v. Maryland, 373 U.S. 83 (1953).
In the initial post-conviction action, Sarah raised this issue only as a “newly
discovered evidence” claim, based on state law grounds. She did not cite Brady or raise
any constitutional basis for her claim. She raised the Brady claim in the successive postconviction, but withdrew it as with the other claims discussed above. (State’s Lodgings
E-3, F-1, G-1.) Hence, it, too, is procedurally defaulted.
2) Merits
Alternatively, the Court concludes that Brady is simply inapplicable at the stage of
proceedings when the fingerprints were finally matched to Christopher Hill. It is well
established that the prosecution has a duty under the Due Process Clause of the
Fourteenth Amendment to disclose exculpatory evidence to the defense that is material to
guilt or punishment. United States v. Bagley, 473 U.S. 667, 676 (1985) (following
Brady). A meritorious Brady claim contains three essential components: (1) the evidence
must be favorable to the accused, either because it is exculpatory or impeaching; (2) the
prosecution must have withheld, during trial or sentencing, the evidence, either
intentionally or inadvertently; and (3) the evidence must be material to guilt or
punishment. Strickler v. Greene, 527 U.S. 263, 281-82 (1999) (emphasis added).
Here, it is undisputed that, at the time of trial and sentencing in 2003, government
agents and prosecutors did not know that the three fingerprints matched Christopher Hill.
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 49
Rather, his fingerprints were deposited into the electronic database in 2007, and the
government agent found the match in 2009, but did not disclose that to Sarah’s counsel—
who found out from a third party. Evidence that is discovered by the government after
trial may be the subject of a new trial motion, but it may not be the subject of a Brady
claim, because the evidence was not known during trial or sentencing and therefore
could not have been withheld intentionally or inadvertently during that time frame. This
claim will be denied on the merits and dismissed with prejudice.
The Court now turns to Sarah’s request for discovery and appointment of counsel.
MOTION FOR DISCOVERY
1. Items Requested
After sixteen years, Sarah desires to test the following items:
Bloodstain 2 from the robe, which contains a mixture of at least three individuals
including an unknown individual.
Tissue from the left collar area of the robe which is from an unknown male.
Bloodstain C on the .264 caliber rifle, which is from an unknown male excluding
Alan Johnson and Bruno Santos.
Samples where no conclusions could be reached due to insufficient amounts of
DNA.
Robe samples #24-30, which were never analyzed.
The results from robe sample 34, if any, which are not listed on the Cellmark
DNA report.
DNA from the unidentified fingerprint on the .264 round (Item #14).
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 50
DNA from the unidentified fingerprints on the doorknob on Diane and Alan
Johnson’s bedroom door (Items #15-16).
DNA from the palm prints (Items 20-2 and 20-3).
DNA from the print on the empty shell casing (Item 12-1).
The hair samples recovered from the barrel of the .264 rifle that could not be
matched to Sarah or any of her maternal relatives by mitochondrial DNA testing.
The two hairs removed from Bruno Santo’s sweater that were excluded as coming
from Sarah and could not be identified as coming from a particular maternal line.
DNA from an unknown contributor found on the inside of the latex glove.
Low levels of DNA from an unidentified source that were found on the leather
glove from the garbage can.
A bloody handprint that was found on the sheet under the pillow beneath Diane.
Sarah also desires to depose her trial attorneys and her post-conviction attorney to aid
in showing cause and prejudice for the default of the claims set forth above.
2. Standard of Law
Sarah seeks discovery in aid of her quest to show that the procedural default of her
claims should be excused because she is actually innocent. She is well aware that actual
innocence is not a stand-alone habeas corpus claim, but merely a gateway through which
she might have her cognizable procedurally-defaulted claims heard.
The strict statutory restrictions on presenting new evidence in federal habeas
proceedings do not apply to requests for discovery to show actual innocence to excuse a
claim’s procedural default. Dickens v. Ryan, 740 F.3d 1302, 1320-21 (9th Cir. 2014) (en
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 51
banc) (discussing Cullen v. Pinholster, 563 U.S. 170, 180 (2011), and 28 U.S.C. §
2254(e)(2)).
Nevertheless, all requests for habeas corpus discovery require a showing of “good
cause.” Rule 6(a) of the Rules Governing Section 2254 Cases. In the context of a request
for discovery on the merits of a claim, the United States Supreme Court has defined
“good cause” as circumstances “where specific allegations before the court show reason
to believe that the petitioner may, if the facts are fully developed, be able to demonstrate
that he [or she] is ... entitled to relief.” Bracy v. Gramley, 520 U.S. 899, 908
(1997)(internal citation omitted). Where the petitioner meets this standard, “it is the duty
of the court to provide the necessary facilities and procedures for an adequate inquiry.”
Id.
The procedural posture of the discovery question before the Court is somewhat
novel. The discovery requested is not in support of the merits of a claim, as in Bracy, but
in support of an actual innocence threshold showing to enable the Court to reach the
merits of several constitutional claims. “How wide should the actual innocence gateway
be?,” asked one law review author,3 and the Court echoes that question here. Even more
particularly, perhaps this Court’s question of law is better phrased as “How long is the
pathway that leads to the actual innocence gateway?” The Court concludes that the
3
See Jennifer Gwynne Case, How Wide Should the Actual Innocence Gateway Be? An Attempt to Clarify
the Miscarriage of Justice Exception for Federal Habeas Corpus Proceedings, 50 Wm. & Mary L. Rev.
669, 678 (2008) (discussing a slightly different gateway issue).
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 52
pathway must be appropriately shortened after Sarah already has traveled the length of
the pathway leading to the Idaho district court and the Idaho Supreme Court. Neither is
the pathway so long that any petitioner is free to engage in discovery to bolster an actual
innocence assertion if the assertion she begins with is implausible. “The actual innocence
gateway is not intended to provide petitioner with a new trial ‘with all the attendant
development of evidence, in hopes of a different result,’” observed the United States
Court of Appeals for the Eighth Circuit. Weeks v. Bowersox, 119 F.3d 1342, 1353 (8th
Cir. 1997), cert. denied, 522 U.S. 1093 (1998).
In its research, the Court did not find case law specifically addressing the standard
for discovery of actual innocence evidence. Analogizing to the standard for discovery on
the merits, the Court concludes that to warrant discovery in the threshold context, the
petitioner must make specific allegations showing that she may be able to demonstrate
that, in light of all of the evidence, it is more likely than not, with the totality of new and
old evidence, that every reasonable juror would vote to acquit. House v. Bell, 547 U.S.
518, 538 (2006).
Knowing what it takes to show actual innocence helps the Court determine
whether, in light of the petitioner’s theory of actual innocence, it is worthwhile or futile
to conduct discovery. House is full of useful explanations about the standard, such as the
admonition that the “actual innocence analysis “does not turn on discrete findings
regarding disputed points of fact, and ‘[i]t is not the district court’s independent judgment
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 53
as to whether reasonable doubt exists that the standard addresses.’” House, 547 U.S. at
539-40 (quoting Schlup, 513 U.S. at 329 (alteration in House)). Rather, the court must
“make a probabilistic determination about what reasonable, properly instructed jurors
would do.” House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at 329). Because a habeas
proceeding is not a proper forum in which to re-litigate an entire case that has already
been tried, “[w]hen confronted with a challenge based on trial evidence, courts presume
the jury resolved evidentiary disputes reasonably so long as sufficient evidence supports
the verdict.” Id.
In addition, where a state court has made relevant findings of fact after an
evidentiary hearing, this Court must presume that those findings are correct. The
petitioner bears the burden of rebutting that presumption of correctness by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1). Bishop v. Warden, GDCP, 726 F.3d 1243,
1258-59 (11th Cir. 2013).
In Sharpe v. Bell, 593 F.3d 372 (4th Cir. 2010), the court explained:
This all makes sense in the general scheme of things.
AEDPA in general and Section 2254(e) in particular were
designed “to further the principles of comity, finality, and
federalism.” Williams v. Taylor, 529 U.S. 420, 436, 120 S.Ct.
1479, 146 L.Ed.2d 435 (2000). Section 2254(e)(1) plainly
seeks to conserve judicial resources and reflects Congress’s
view that there is no reason for a do-over in federal court
when it comes to facts already resolved by state tribunals.
That section also reflects Congress’s respect for principles of
federalism, recognizing that a decision to set aside state court
factual findings intrudes on the state’s interest in
administering its criminal law. See Miller-El v. Cockrell, 537
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 54
U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The
deference Section 2254(e)(1) requires has particular salience
when a state court's determinations closely track the legal
issues before the federal habeas court. Where a state court
looks at the same body of relevant evidence and applies
essentially the same legal standard to that evidence that the
federal court does under Schlup, Section 2254(e)(1) requires
that the state court’s findings of fact not be casually cast
aside. See Miller, 474 U.S. at 113, 106 S.Ct. 445 (citation
omitted). Indeed, the cavalier treatment of such findings in
federal Schlup proceedings would contravene the course of
federal-state relations set by the Congress and the Supreme
Court with great consistency over a very considerable period
of time.
Id. at 379. Finally, “it bears repeating that the Schlup standard is demanding and permits
review only in the ‘extraordinary’” case. House, 547 U.S. at 538 (quoting Schlup, 513
U.S. at 327.)
3. Discussion
Here, Sarah desires to revisit the jury’s finding that she was the shooter. She
theorizes: “If the testing of the previously untested and/or unidentified DNA on the robe,
rifle, round, doorknob, palm print, hair on the rifle, Bruno’s sweater, latex, and/or leather
glove are shown to match Christopher Hill, Matthew Johnson, or other known persons it
would go to show that person committed the crimes, not Sarah.” (Dkt. 20-1, p. 8.)
As discussed above, a request for discovery based on actual innocence must be
grounded in a set of facts that make sense in light of the other evidence heard by the jury.
One federal district court summarized the necessary type of evidence as follows:
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 55
In the few cases in which a federal habeas petitioner
has been found to satisfy the Schlup standard, the new reliable
evidence consisted of credible evidence that the petitioner had
a solid alibi for the time of the crime, numerous exonerating
eyewitness accounts of the crime, DNA evidence excluding
the petitioner and identifying another potential perpetrator, a
credible confession by a likely suspect explaining that he had
framed the petitioner, evidence that called into question the
reliability of all of the evidence on which petitioner’s
conviction rested, and/or evidence contradicting the very
premise of the prosecutor’s case against the petitioner. See,
e.g., House v. Bell, 547 U.S. 518, 537, 126 S.Ct. 2064, 165
L.Ed.2d 1 (2006).
Helms v. Clark, No. CV 07-5263GHK(PLA), 2010 WL 935784, at *2 (C.D. Cal. Mar. 11,
2010) (emphasis added).
After reviewing the 6,000-plus pages of the state court record in this matter, this
Court agrees with the Idaho Supreme Court that the evidence implicating Sarah’s
involvement is “substantial” (id., p. 13), and even “overwhelming,” as the two Idaho state
district court judges concluded. (State’s Lodging E-7, p. 286.) There is no plausible set of
facts showing that anyone aided Sarah. There is substantial evidence that Sarah was the
shooter. Therefore, this Court agrees with the Idaho state courts that further discovery
and testing is unnecessary.
This Court agrees that, because the former DNA testing already has shown the
links among Sarah, Alan, and Diane, further testing based on the different blood spatter
theories is unhelpful inasmuch as the actual innocence analysis “does not turn on discrete
findings regarding disputed points of fact.” See House, 547 U.S. at 539-40. Sarah’s
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 56
argument is focused on a dispute between the two sets of experts, isolated from the
remainder of the record. The jury heard all of the experts and resolved their conflicting
opinions as to the material facts in favor of the State. Sarah has not presented enough
here (or in any prior state court proceeding) to show that, if additional discovery were
permitted, she could put forth a plausible fact pattern that could aid in a showing of actual
innocence.
The experts at trial disagreed about whether the spatter on the robe could have
occurred without the shooter also getting spatter on their hair and face. There was little to
no expert opinion on why the gloves had gunshot residue on them but no blood and why
the gun used to kill Diane did not have blood spatter on it. Neither side had a complete
picture of what happened when Diane’s head shattered. The actual mechanics of the
blood spatter are unknowable and nonreplicable because human experiments are
impossible and impermissible. Experts can never fully explain the reasons for the fact
that blood spatter occurred on some items within range of the spatter and not others, but
other evidence pointing to Sarah as the shooter is substantial. Evidence pointing to her
involvement is overwhelming.
Other disputed points of fact are whether the comforter was pulled up and tucked
in around Diane’s head before or after the shooting. Did the murderer shoot through,
under, or free from the bedsheet and comforter? Did the murderer have her whole body
covered to avoid blood spatter, but investigators simply did not find all of the coverings?
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 57
These disputed points of fact will not be answered by additional DNA testing. That they
remain unanswered does not mean the mystery is unsolved. The questions do not change
the fact that so much other evidence points to Sarah’s involvement in the shootings.
The murders of Alan and Diane Johnson were well-planned. The Court does not
agree with Sarah that the lack of her fingerprints and the lack of her mother’s blood on
her person show that, if additional DNA testing is conducted, she will be able to
demonstrate that it is more likely than not that every reasonable juror would vote to
acquit her. The shooter certainly anticipated that there would be spatter, and that is why
the robe was worn backwards and then promptly deposited in the trash can, and, likely,
that is why that date was chosen for the murders, because it was trash day. A shooter who
had the foresight to wear the robe backwards likely would have covered her face, hair,
and hands. A shooter who was careful enough to leave no fingerprints on the trigger,
trigger guard, or bolt lever of the gun or on the knives likely would not have left
fingerprints on the gun’s scope, body, or ammunition. Either gloves were worn or only
parts of the gun were wiped down after the shootings. The shooter may have anticipated
that the owner’s fingerprints would be on the gun, inculpating him, instead of her.
What looked like a nearly perfect plan was not perfectly executed by the shooter.
The shooter seems to have been slightly confused that the .25 caliber ammunition did not
fit into the .22 rifle and that the 9 millimeter pistol could not be retrieved from the gun
safe, causing a change of plans to the .264 rifle. The shooter probably was surprisingly
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shocked by what has been described as the “carnage” that occurred when Diane was shot
point blank with a high-power rifle and the fact that the full-on frontal shot to Alan did
not immediately kill him, but left him to bleed to death over the next few minutes, as he
pulled a towel rack and a crucifix off the wall and then stumbled to his wife’s bedside.
The plan miraculously was disrupted by insightful and timely police investigators saving
the trash cans from being emptied that morning. The immediate aftershock of the
shootings would have been enough for any human being to accidentally step in the blood
with her socks, leave all kinds of bullets and a glove in her staging area, and then to mix
up the story of what really happened multiple times.
It is no wonder that a perfect plan went awry, because the shootings had to have
been much more brutal in person than the planner ever could have imagined in her mind.
Had the plan not gone slightly awry, Sarah may have escaped liability. Not because she
was actually innocent, but because she planned and executed the plan for murder
extremely well.
It is quite easy for the Court to deny Sarah’s discovery request based on mere
speculation that her brother, Matthew Johnson, who was away at college in a different
city, killed their parents. (Dkt. 20-1, p. 8.) Matthew testified he was awakened at college
by a call from his fiancée, telling him that his parents had been shot and offering to drive
him home. He did not arrive back in his home town until about 3:00 p.m. Sarah has
pointed to no evidence, new or old, that implicates Matthew. The request for discovery
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based on a new theory that Matthew was the shooter is factually implausible and even
groundless.
As to Christopher Hill, Sarah had an opportunity in the state post-conviction
proceedings to develop her actual innocence claim that is based on her assertion that he
shot her parents. Even if her initial post-conviction attorney failed to obtain additional
evidence, Sarah has had new lawyers in her service and many more years to come
forward with something more that links him to the crimes.
The state district court particularly made a finding of fact that Christopher Hill
was credible in his testimony that he had no involvement in the shootings. The state
courts have thoroughly compared the evidence implicating Sarah and the lack of evidence
implicating Christopher.
In denying Sarah’s motion for further DNA testing, the Idaho Supreme Court
reasoned:
After examining the record, there is nothing to establish that
any of these DNA samples came from the shooter. There is
no DNA or fingerprint evidence on the trigger, trigger guard,
or bolt lever of the gun. Additionally, testimony at trial was
clear that there is no way to determine when any of the
fingerprint or DNA samples on the gun, the shell casings, the
robe, the latex glove, or the leather glove were deposited on
the items. Thus, even if we view the potential outcome of the
requested testing in the light most favorable to Johnson and
assume that some or even all of these samples came from a
single third-party source, it would—at best—show that at
some unidentified point in time, and in some identified
manner, such person was close enough to those items to leave
their DNA on them. But, because there is no way to tell when
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the DNA was deposited on the items, the evidence cannot
show that such person used the gun, gloves, ammunition, or
robe on the day of the murder. Therefore, the evidence has no
potential to show, and again, even assuming that all of these
samples came from the same person, that such person was the
shooter. Likewise, the evidence cannot show that Johnson
was not the shooter.
(State’s Lodging H-8, p. 12.)
This Court has considered whether, as a minor child, Sarah was prompted,
encouraged, or aided by an adult—which would bear, not on her conviction, but on her
sentence.4 However, the actual innocence threshold requires that Sarah show not simply
4
In Montgomery v. Louisiana, the United States Supreme Court explained:
Miller took as its starting premise the principle established in Roper and
Graham that “children are constitutionally different from adults for purposes of
sentencing.” 567 U.S., at ––––, 132 S.Ct., at 2464 (citing Roper, supra, at 569–
570, 125 S.Ct. 1183; and Graham, supra, at 68, 130 S.Ct. 2011). These
differences result from children's “diminished culpability and greater prospects
for reform,” and are apparent in three primary ways:
“First, children have a ‘lack of maturity and an underdeveloped sense of
responsibility,’ leading to recklessness, impulsivity, and heedless risk-taking.
Second, children ‘are more vulnerable to negative influences and outside
pressures,’ including from their family and peers; they have limited ‘control
over their own environment’ and lack the ability to extricate themselves from
horrific, crime-producing settings. And third, a child's character is not as ‘well
formed’ as an adult's; his traits are ‘less fixed’ and his actions less likely to be
‘evidence of irretrievable depravity.’ ” 567 U.S., at ––––, 132 S.Ct., at 2464
(quoting Roper, supra, at 569–570, 125 S.Ct. 1183; alterations, citations, and
some internal quotation marks omitted).
As a corollary to a child’s lesser culpability, Miller recognized that “the
distinctive attributes of youth diminish the penological justifications” for
imposing life without parole on juvenile offenders. 567 U.S., at ––––, 132 S.Ct.,
at 2465. Because retribution “relates to an offender’s blameworthiness, the case
for retribution is not as strong with a minor as with an adult.” Ibid. (quoting
Graham, supra, at 71, 130 S.Ct. 2011; internal quotation marks omitted). The
deterrence rationale likewise does not suffice, since “the same characteristics
that render juveniles less culpable than adults—their immaturity, recklessness,
and impetuosity—make them less likely to consider potential punishment.” 567
U.S., at –––– – ––––, 132 S.Ct., at 2465 (internal quotation marks omitted).
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 61
that a previously unidentified set of fingerprints has been matched to an adult, but that it
is plausible that the adult was actually involved in the crime. Without a plausible
explanation from Sarah about how and why Christopher was involved in the shootings,
the request for retesting is simply a fishing expedition.
Whether acting by himself, or in conjunction with Janet Sylten, Sarah has not
connected Christopher to the crime in any plausible way. Christopher would have to have
known that Mel had uncharacteristically decided to stay in Boise through Tuesday, would
have to have found a way to get into the locked guest house to retrieve the two rifles and
mismatched ammunition, would have to have determined how to enter the main house,
would have to have gone into the garage to leave the .22 rifle and .25 ammunition there,
would have to have found Diane’s leather gloves in her car, would have to have looked
for something to shield himself from blood spatter, and would have to have squeezed
himself into a female high school student’s pink bathrobe (even though he was over six
feet tall and 200 pounds (State’s Lodging F-1, p. 28 n. 9)).
After that, as the story goes, he must have put the .25 bullets in the robe pocket,
put Alan’s 9 millimeter magazine with bullets and .265 bullets in different places around
Sarah’s bedroom, somehow found an old latex glove that Sarah had previously used (in
an effort to frame Sarah) and put it on (because it had gunshot residue on it), put on the
pair of women’s leather gloves (because they also bore gunshot residue), found kitchen
Id., 136 S. Ct. 718, 733, as revised (Jan. 27, 2016).
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knives and staged them in the guest bedroom and the master bedroom (in an effort to
frame gang members), killed Alan and Diane for an unknown reason or to help Jackie
Sylten get revenge for Diane reporting the stolen lotion to her supervisor and getting her
fired, dropped the right handed glove on a table in Sarah’s bedroom, stuffed the small
pink robe and the two left-handed gloves in the trash can—somehow knowing that
Tuesday was trash day—and disappeared unnoticed. A bonus unbeknownst to
Christopher was that somehow, on that very morning, Sarah was wearing the shirt with
the paint stains that matched the paint residue on the inside of the robe. That scenario is
implausible and not worthy of further discovery.
Trial Judge Barry Wood similarly reasoned:
[T]o suggest to a reasonable jury such things that
somebody off the street could come and find that gun in the
guest house, find those bullets in the guest house, know when
the parents were going to be there; find the knives in the
kitchen that are hidden, the one knife that’s hidden behind the
microwave or bread box, whatever it was, in the dark, no less;
go out past the family dog that the evidence was would bark,
and the dog didn’t bark. Take the same route that Sarah
Johnson told the police she took out of the house, past the
trash can where the robe is found. Get her bathrobe out of the
bathroom next to her room, and not awaken or bother her.
Both doors being open, according to her experts, the
parents’ bedroom door and her bedroom door. Do all of this
in the dark and not disturb the parents just defies common
sense.
I think a reasonable jury could clearly find, beyond a
reasonable doubt, Miss Johnson’s involvement here.
(State’s Lodging E-7, p. 284.)
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Based on all of the foregoing, the motion for discovery will be denied. This case
will proceed to the merits of the remaining claims.
ORDER
IT IS ORDERED:
1. Petitioner’s Motion for Limited Discovery (Dkt. 20) is DENIED.
2. Petitioner’s Motion for Appointment of Counsel (Dkt. 21) is GRANTED as
set forth above.
3. The parties’ Motions for Extension of Time (Dkts. 13, 17, 22, 27) are
GRANTED.
4. The parties’ Motions for Leave to File Excess Pages (Dkts. 15, 18, 24) are
GRANTED.
5. Respondent’s Motion for Partial Summary Judgment (Dkt. 16) is
GRANTED as to Claims One and Six, which are DISMISSED with
prejudice. The Motion (Dkt. 16) is CONDITIONALLY GRANTED as to
Claims Three, Four, and Five. However, the Court will not entertain further
briefing on excuses for procedural default this time, but shall proceed to the
merits of all remaining claims—Two, Three, Four, Five, and Seven.
6. Respondent shall file an answer to the remaining claims within 90 days
after entry of this Order. The answer should also contain a brief setting
forth the factual and legal basis of grounds for dismissal and/or denial of
MEMORANDUM DECISION AND ORDER ON ALL PENDING MOTIONS - 64
the remaining claim. Petitioner shall file a reply (formerly called a
traverse), containing a brief rebutting Respondent’s answer and brief,
which shall be filed and served within 30 days after service of the answer.
Respondent has the option of filing a sur-reply within 14 days after service
of the reply. At that point, the case shall be deemed ready for a final
decision.
7. No party shall file supplemental responses, replies, affidavits or other
documents not expressly authorized by the Local Rules without first
obtaining leave of Court.
DATED: September 18, 2019
_________________________
Honorable Candy W. Dale
United States Magistrate Judge
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