Wednesday, July 11, 2012

State seeks stay in Johnson case

Pro-bono counsel opposes delay in proceedings

Express Staff Writer

Convicted murderer Sarah Johnson was charged with the murders of her parents in 2003. Johnson, now 25, is currently serving two life sentences without the possibility of parole. Express file photo

The Idaho Attorney General's Office is seeking a stay in post-conviction relief proceedings for Sarah Johnson, who is seeking acquittal or a new trial in the 2003 murders of her parents in Bellevue.

Deputy Attorney General Jessica Lorello filed a motion to stay proceedings on July 3 in Blaine County 5th District Court. Lorello argued in her filing that further proceedings should await the outcome of an Idaho Supreme Court decision regarding an appeal filed on Johnson's behalf after she was earlier denied a new trial more than a year ago.

Boise attorneys Dennis Benjamin and Deborah Whipple, who have worked pro bono on the Johnson case for almost a year, quickly filed an objection to Lorello's motion on Friday, July 6, arguing that justice will best be served for Johnson if new post-conviction relief proceedings are allowed to continue.

Benjamin and Whipple are seeking to have presiding Judge G. Richard Bevan reopen the Johnson post-conviction relief case, arguing that new DNA evidence could exonerate their client.

That DNA evidence has not yet been produced, but Benjamin and Whipple, both with the Boise law firm of Nevin, Benjamin, McKay & Bartlett, argued in earlier filings that new DNA analytical techniques, not available when Johnson was tried in 2005, could identify the real killer.

"If there's exonerating DNA, there ain't going to be a new trial," Benjamin said in an interview Monday. "If we can prove through DNA evidence that someone else did it, then they'll have to set her free."

Benjamin and Whipple are backed in their claims by the Idaho Innocence Project. The organization's director, nationally renowned DNA expert Greg Hampikian, previously stated that he believes Johnson is innocent.

Johnson, now 25, was only 16 when her parents, Alan and Diane Johnson, were shot to death at the couple's home in Bellevue on Sept. 2, 2003. Sarah Johnson was convicted of two counts of first-degree murder by a jury in 2005 and is currently serving two life prison sentences without the possibility of parole.

Judge Bevan, who ruled against Johnson's bid for a new trial in 2011, has not agreed to reopen the case because of the Benjamin and Whipple claims, which were filed in April, but has agreed that their arguments at least deserve closer scrutiny.

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In June, Bevan ordered that new legal counsel, at Blaine County expense, be appointed to represent Johnson in a myriad of procedural arguments surrounding Benjamin and Whipple's claims. Bevan ordered that new counsel be drawn from the county's pool of contracted public defenders, but that appointment has not yet been decided.

Ketchum attorney Dan Dolan was earlier given the appointment, but Dolan has already filed a "notice of conflict" document with the court. The document remains sealed and not available for public review, but Dolan's conflict presumably stems from the fact that he has twice represented Sarah Johnson's former boyfriend Bruno Santos, first when Santos was a suspect in the Johnson killings and later when he was charged and convicted of felony methamphetamine and cocaine trafficking and delivery charges. Santos is currently serving a 14-year prison sentence on those convictions.

Benjamin, who has already been appointed to represent Johnson on her current appeal before the Idaho Supreme Court, said a decision there is not likely until early 2013.

That appointment, by the state high court, is paid for by the state of Idaho.

In their objection to Lorello's motion for a stay of post-conviction proceedings, Benjamin and Whipple argue that they have raised new issues not tied to Bevan's earlier decision denying Johnson a new trial.

They further argued against Lorello's claim that a stay in proceedings would provide "judicial economy and conservation of resources."

Benjamin said Monday that Lorello is mainly addressing expense to Blaine County.

"A stay will not promote any cost savings to the county," Benjamin and Whipple wrote in objection to Lorello's motion. "While money is at stake for Blaine County, imprisonment is at stake for Sarah Johnson. Of the two costs, wrongful imprisonment is much greater.

"And, if the county wishes to lower its costs to defend in the post-conviction action, it has the power to seek a settlement and save itself not only the costs of defending against the post-conviction claims, but also any costs of a retrial."

Johnson's court proceedings during the past nine years have already cost Blaine County more than $1.1 million.

Terry Smith:

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